DON MILLIGAN: 2004

LECTURE 09: INFORMATION & POLITICS SERIES

Copyright and Intellectual Property

Generally property is vested in a thing or in land. It is a thing

that can be bought and sold, exchanged, traded, hired out. It has

to have these physical properties. It can then be protected by

common law and by statute. Its enjoyment can be guaranteed by

custom. Constitutions and other legal instruments can guarantee

the sanctity of such possessions.

On the other hand, intellectual property, is intangible, it is not a

thing. It cannot be held in the hand. Yet we know it as property

because it can be bought and sold, exchanged, traded, hired out.

Intellectual property has these commercial characteristics, but

none of the physical attributes of ordinary, real or tangible

property.

It is vital to grasp this distinction because a book, a blueprint, a

sheet of music, or a CD is never literally the subject of

intellectual property laws the particular book, the particular

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sheet of music, the particular CD, is not copyrighted. It is the

specific arrangement of words or notes upon a page, which is

copyrighted; it is the specific form of the music on the CD or the

radio show, which is copyrighted.

Of course, intellectual property is always attached to a physical

thing; intellectual property is always carried by something with

material qualities, but the intellectual property itself is not the

physical thing, upon which, or in which, it is carried.

If you buy a book in a shop, if you buy a CD in a shop, once you

have paid your money legal title to that particular object changes

hands it becomes your book or your CD; your possession and

the private enjoyment of it is protected by law and guaranteed

by the state.

However, you do not own the intellectual property contained

within the book or the CD. The right to claim authorship, or the

entirely separate right, to reproduce or copy the book or CD, is

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not yours in the shop you bought the tangible thing, not the

intangible intellectual property.

So the purchase of some writing or music or movies for your

private enjoyment is sharply different from the purchase of the

copyright to that writing, music or film.

When somebody buys the copyright they purchase the right to

reproduce the specific arrangement of words or notes upon a

page; they purchase the right to copy the particular arrangement

of sounds or images upon a disc.

However, they are not the outright owners of the intellectual

property because of what the lawyers call moral right. The sale

of the copyright by an author to a publisher or a distributor does

not undermine or abolish the authors moral right. Thus the

author remains the author whether she has sold the copyright to

her novel or her research paper or not. She continues to have the

right to be acknowledged as the author and is protected from the

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mutilation or alteration of her work by the publisher or

distributor to whom she sold the copyright.

So, the author always has moral rights in relation to his

creations. His play, his textbook, his blueprints always remain

his, even though he may have sold the right to copy and

distribute his work to another person or company.

This lecture is, by moral right, my intellectual property. I

wrote it, I have the right to be identified as its author, and I am

protected from it being altered in any way by another person.

However, I do not own the copyright. The copyright belongs to

Manchester Metropolitan University because it is part of my

contractual responsibilities, for which I am paid, to write

lectures.1

Similarly, if a stock exchange or any other institution awards or

sells the rights to distribute or disseminate information which it

1
See Jeremy Phillips, et. al., Whale on Copyright, London: Sweet & Maxwell, 1997, p.15.

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has gathered together, to a news agency or information bureau,

then the right to distribute the news about that information

stock or commodity prices for example belongs to them.2

They have paid the authors or source of the information for the

privilege of spreading the news. By payment they have changed

legal title to this knowledge as if the knowledge was a thing.

So, intellectual property has this threefold aspect:

1. The moral right of the author to protect the arrangement or

form of his work and to be identified as its creator.

2. The commercial right of the copyright-holder to reproduce

and distribute the work.

3. The right of those who have paid the copyright-holder for

permission to enjoy the work in private, or the special right
of those who have paid for permission use the work in
public performances.

It is from these three aspects that we can see the peculiar

character of intellectual property and the ways in which it is a

specific kind of property quite different from the property in

2
See J. W. Harris, Property & Justice, Oxford: Oxford University Press, 1996, pp.342-348.

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things that we more easily identify as property belonging to a

particular person or institution.

Intellectual property exists in the form of (1) patents,

(2) copyright, and (3) trademarks and industrial designs. These

three different sorts of intellectual property are the subject of

different legal provisions, but my focus is going to remain on

copyright as the most common or widespread form of

intellectual property and the one in which we are most likely

to encounter the law and the conflicts to which it gives rise.

It is often difficult to believe that the copyright should be

respected. It can, at times, appear to be at best, unjust, and at

worst, simply insupportable.

In this respect, our difficulties are revealed very clearly by the

Universal Declaration of Human Rights adopted by the United

Nations in 1948.

Article 27: reads:

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(1) Everyone has the right freely to participate in

the cultural life of the community, to enjoy the
arts and to share in scientific advancement and
its benefits.

(2) Everyone has the right to the protection of the

moral and material interests resulting form any
scientific, literary or artistic production of
which he is the author.3

Now, clearly there is a conflict between these two rights: (1) the

rights of the person or citizen to access cultural production of all

sorts, and (2) the rights of the authors of that cultural production

to benefit materially from their creative work.

When teachers at MMU distribute photocopies of chapters taken

from books they are providing access to work that you would

not otherwise be able to read, or at least, not get hold of very

easily. In doing so, they are I hope careful, always to include the

title page of the book and the page bearing the books

publication details. They do this for two reasons: (1) to make it

3
Universal Declaration of Human Right, Adopted and proclaimed by General Assembly resolution 217
A (III) of 10 December 1948, quoted from the website http://www.un.org/Overview/rights.html last
visited on 18/02/04.

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easier for you to find the book should you want to read more of

it, and (2) to support the moral right of the author to

recognition for having written the book.

In doing so, strictly speaking, they are breaching the publishers

and the authors copyright. However, except in the case of

popular textbooks or manuals they could not be said to be

damaging the sales of the author or publisher by handing out

photocopies taken from very expensive, hardback, academic

works. If lecturers stopped their photocopying it is unlikely

that you would rush out and buy copies of these books, and you

would in all probability never hear of most of these authors

without the photocopies.

So, a balance has to be struck. For example, I do not photocopy

computer application manuals. I have to write my own training

exercises and materials. This is because, if I photocopied those

published by Microsoft or other publishers in the field I would

clearly be challenging or undermining their commercial

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interests; I would be breaching their copyright in every material

and legal sense.

There is certainly a paradox hiding in this practice, which is

common in colleges and universities all over the world. The

copyright to the popular, best selling, most profitable works is

respected, while that of the most obscure and least profitable is

routinely violated. It is a paradox that prevents universities and

colleges from being routinely prosecuted and ensures that

generations of students have free and easy access to material

they would otherwise not see.4

Where this paradox does not exist is in music or movie

publishing. Here, it is the most popular, and hence the most

profitable music or movies, which are pirated. This is why

illegal copying of CDs and DVDs attracts such attention: the

material interests of the copyright-holders are being directly

4
See Limitations on exclusive rights: fair use at http://www.law.cornell.edu/uscode/17/107.shtml
[This note was added in July 2009].

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affected. Copyright piracy is resulting in a loss of revenue,

which in law, belongs to the copyright-holders.

It is worth pausing to reflect how we got into this peculiar

situation. It worth looking briefly at the history of copyright to

get some understanding of how this form of property first came

into being. It is worth doing this because this history reveals

why modern technologies have put the law under such strain and

created what can only be described as a crisis in compliance

and, consequently, in enforcement of the law.

Before William Caxton introduced printing with moveable type

into England in 1476 the reproduction of literary works in any

volume above two or three copies was impossible. As printing

presses became more established and the trade expanded it

became necessary for the Tudor state to exercise control over

the copying and reproduction of books. The Crown granted

Letters Patent to a particular printer giving him exclusive rights

to print and sell particular manuscripts or works.

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This practice was regularised by a decree of the Star Chamber in

1556, which granted the monopoly of the copying of all books

and manuscripts to members of the Stationers Company of the

City of London.

However, this kind of regulation was not aimed at protecting the

income or status of authors. The control of the import and

copying of all manuscripts and books by the Crown and the

regulation of all printing and bookselling, on behalf of the

Crown, by the Stationers Company was a guarantee of political

control over the dissemination of ideas and opinions. This state

control was periodically strengthened by new decrees of the Star

Chamber, particularly by that of 1637, which insisted that all

books be licensed and entered in the register book of the

Stationers Company.

The Star Chamber was abolished in 1640 and in 1643 the Long

Parliament adopted an Act for Redressing Disorders in

Printing. This act, retained the role of the Stationers in licensing

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and registering all publication, but recognised that books and

manuscripts could not be printed and sold without the express

permission of their authors.

However, it is not until we see the emergence of capitalism

the emergence of a market in literary works that something like

the modern copyright laws began to come into existence.

The last of the old political acts, The Licensing Act of 1662,

was repealed in 1694 when the registration and censorship

enforced on behalf of the Crown by the Stationers Company

was abolished.

For some years there was no copyright protection of any sort. In

fact, it was not until the Act for the Encouragement of Learning

by vesting the Copies of printed Books in the Authors or

Purchases of such Copies during the Times therein mentioned

passed during the reign of Queen Anne in 1709 that the rights of

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authors and, of the printers and booksellers to whom the authors

had sold or assigned their rights, received any protection.

The word modern word copyright does not come into use until

the late 1730s.5 And it is from the middle of the eighteenth

century, with the development of a fairly large and growing

market in literary works that copyright becomes firmly

established and is clearly separated from any issues concerning

registration and censorship.

From the Universities Copyright Act of 1775 printers and

booksellers had to deposit nine free copies of the books they

published. And from the case of Beckford v. Hood in 1798 it

became established that copyright was created automatically by

publication you did not need to register or establish your

copyright it was automatically created by the publication of

your work.6 This is the basis of our modern law.

5
See Roy Wiles, Serial Publication in England before 1750, Cambridge: Cambridge University Press,
1957, passim.
6
Phillips, et. al. Whale on Copyright, p.6.

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In due course, engraving, sculpture, plays, paintings, drawings,

photographs, maps, pamphlets and sheet music received the

express protection of the law and the length of copyright

protection was steadily extended.7

All of these eighteenth and nineteenth century statutes were

brought together and codified in the Act of 1911. Since then

copyright has been specifically extended to broadcasting (1956),

cable transmission (1984) and to software in the 1985 Copyright

Amendment (Computer Software) Act in this act computer

programs were said to be like literary works.

All this modern legislation was codified, made firmer and more

explicit, in the Copyright, Designs and Patents Act of 1988.

This, and the directives of the old EEC and the subsequent

directives of the European Union form the backbone of the

modern law.

7
Engraving Copyright Act 1734; Sculpture Copyright Act 1814; Dramatic Copyright Act 1833; Fine
Arts Copyright Act 1862; and, the Act of 1842 which covered maps, books, pamphlets, sheet music,
plans, and extended protection to 42 or seven years from the authors death, whichever was longer.

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So, copyright comes into existence with the market in literary

works and is strengthened as that market in intellectual property

is extended to include works of art, photographs, phonograph

records and moving pictures.

However, until very recently, copyright did not affect ordinary

members of the public; copyright did not impinge on the life or

conduct of the ordinary consumer. Copyright was a matter of

concern to publishers, distributors and authors. Copyright

regulated commercial relations between publishers, distributors,

and authors it had nothing to do with the mass of people who

bought books, watched television shows, or bought cinema

tickets.

This situation was altered fundamentally by changes in

technology. In 1958 the Haloid Company changed its name to

Haloid Xerox Inc. and the following year announced the

invention of the first plain paper copier. In 1961 the company

was floated on the New York Stock Exchange and changed its

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name to Xerox. By 1988 the company had sold 2 million Xerox

copiers.8

These developments, together with the development of offset

lithography, and more recently of the digitalisation of

intellectual property and its dissemination via distributed

computer networks have created an entirely new set of

circumstances. Matters concerning copyright are no longer

restricted to publishers, distributors or authors now that more

or less everybody can copy and distribute material we are all,

potentially at least, publishers. We can all use our access to ICT

to copy and distribute intellectual property in violation of the

rights of the copyright-holders.

This, situation did not arise over night. In fact it began during

the second industrial revolution with improvements in

photography and printing that made piracy and particularly,

8
See the websites of Indiana University Purdue University Indianapolis, http://www.iupui.edu/ and
http://webphysics.iupui.edu/251/251Sp97GFJan20.html last visited on 18/02/04.

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international piracy a matter of concern. Consequently, the

Berne Convention for the Protection of Literary and Artistic

Works was established in 1886. And, the Berne Copyright

Union was established in the same year. A growing number of

countries signed up in an attempt to prevent cross-border piracy

of books, photographs and subsequently, movies.

Over the years these conventions have been strengthened by the

development of new conventions, new international bodies and

new international agencies like the World Intellectual Property

Organisation (WIPO).

However, it was not until the end of the Uruguay Round of

multilateral trade negations that attempts to harmonise

international intellectual property rights protection were fully

integrated into work of GATT and the World Trade

Organisation. In the Final Act signed on April 15th 1994 at

Marrakech in Morocco, the negotiating states agreed to regulate

and protect trade-related aspects of intellectual property rights. It

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was agreed that TRIPs Trade Related Aspects of Intellectual

Property Rights would be overseen by the World Trade

Organisation.9

It is now recognised particularly in pharmaceuticals,

biotechnology, scientific knowledge of all sorts, in technology

transfer, that protection of intellectual property is central to the

world trading system and to the integrity of the full development

of capitalist relations on a global scale.

This has had some extraordinary effects, from the patenting of

the genetic structure of living creatures to the patenting by

Western multinational companies of particular, plants, beans,

and trees.

Of more immediate concern to us when considering the role of

ICT in all of this is the development of electronic copyright

management systems (ECMS). These systems are being piloted

9
Christopher May, A Global Political Economy of Intellectual Property Rights: The New Enclosures?,
London: Routledge, 2000, p.67. See also the World Trade Organisation site at WTO Intellectual
Property, http://www.wto.org/english/tratop_e/trips_e/trips_e.htm, last visited 30/11/05.

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in order to create a technological and organisational

infrastructure that allows creators of an original information

product to enforce their copyright in the product when it is

accessed online.10

In other words, it is intended that ECMS be used to register

authors copyright online and to allow people, on payment of a

fee, to access protected works from a database. It also involves

developing the capacity to ensure that individuals are not

illegally copying in the privacy of their own homes on their own

equipment. While it is permitted for you to make a back-up copy

of software, you are not allow to copy software or to access

databases because by holding this material even temporarily

in the RAM of your computer you are illegally copying

protected material.11

10
Lee A. Bygrave and Kamiel J. Koelman, Privacy, Data Protection and Copyright in P. Bernt
Hugenholtz (ed.), Copyright and Electronic Commerce, London: Kluwer Law International, 2000,
p.60. See also Y. Rogier, B. Stanford-Smith, P. T. Kidd, Advances in Information Technologies,
Amsterdam: IOS Press, 2000, pp.428-430.
11
Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs OJ L
122/42; Council Directive 96/9/EC of 11 March 1996 on the legal protection of databases OJ L 77/20;
see also, Bygrave et. al. Privacy, Data Protection and Copyright, pp104-106.

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So, to sum up, copyright emerged with the market in literary and

artistic works during the eighteenth century. Until the nineteen

eighties it was a matter of concern only to those engaged in

creating, publishing or distributing creative works.

More recently, the protection of intellectual property has

become a matter of key importance in international trade and

because of the digitalisation of information and the spread of

distributed computer networks copyright now, in one way or

another, effects the entire population.

BYGRAVE, Lee A., and KOELMAN, Kamiel J., Privacy, Data

Protection and Copyright: Their Interaction in the Context
of Electronic Copyright Management Systems, in P. Bernt
Hugenholtz (ed.), Copyright and Electronic Commerce:
Legal Aspects of Electronic Copyright Management,
London: Kluwer Law International, 2000, pp.59-124.
DENT John R. L. Dent, A Guide to Copyright in Corporate
Film and Video Programmes, Peterborough: Guild
Editions, 1990.
HARRIS, J. W. Property & Justice, Oxford: Oxford University
Press, 1996.
INDIANA University Purdue University Indianapolis,
http://www.iupui.edu/ 18/02/04.

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MAY, Christopher, A Global Political Economy of Intellectual

Property Rights: The New Enclosures?, London:
Routledge, 2000.
PHILLIPS, Jeremy, DURIE, Robyn, and KARET, Ian, Whale
on Copyright, London: Sweet & Maxwell, 1997.
UNITED NATIONS, Universal Declaration of Human Right,
Adopted and proclaimed by General Assembly resolution
217 A (III) of 10 December 1948, quoted from the website
http://www.un.org/Overview/rights.html last visited on
18/02/04.
WILES, Roy, Serial Publication in England before 1750,
Cambridge: Cambridge University Press, 1957.

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