In an era when the making and distribution of, and access to creative materials, from text to photographs and sound recordings to 3D digital images is so easy, it has often been said that copyright is obsolete and will surely die out, being replaced by a system of licences. However, this view is not based on any clear scientific analysis of the issue but, rather, on conjecture and wishful thinking.

Copyright as a concept is very old and can be traced back to the sixth century but it was only in the 18th. century, under Queen Anne, that it was enshrined in law. But concepts are, almost by definition, living organisms in that they can grow and change or wither and die. Their codification in law is no guarantee of either development. Any biologist trying to establish the likely future of any living species will consider its evolutionary history to see what signals can be gained from it to predict the future. Three aspects of such organisms are: habitat, function and predators. I want to explore (briefly) three aspects of copyright: what types of material are protected (habitat); what actions it covers (function) and how it reacts with those who use the organism (predators).

Copyright is an intangible object so it cannot exist alone: it must have somewhere to exist. It began life as a protection for printers and the dissemination of their works. Gradually it evolved to protect the content of the works, not just their printed versions, so that authors were given rights as well as publishers. Further expansion embraced engravings, paintings and, other works of art such as sculptures and drawings. Along came the camera and eventually photographs and photographers were also protected. By the beginning of the 20th. century most created works and their creators were eligible for copyright protection, films not achieving this until 1957!! This was followed by expansion into performances, adaptations and even some scanned copies. You may say “enough history” but the point is just that: evolution is an historical process and thus far it is clear that the concept of copyright has evolved to embrace many new forms of creative expression. In more recent years this has also included computer programs, databases and even logos for trademarks and many other less obvious items.

In order to survive organisms must adapt to their environment by changing their behaviour. The English word “copyright” gives the clue to its original purpose and this continued for nearly a century-and-a-half as there were no technologies to make considering any other actions necessary. Then photography made it possible to reproduce, say, a statue in two-dimension so the idea of changing media as a form of copyright infringement came about. There then followed such events as the performing of a play which was not actually “copying” but using the material instead. Using rather than copying has been an increasing function of copyright and the protection of music from public performance without compensation dates back to 1911. This idea of restricting use has grown as the internet has become a central tool of distribution so that material can only be viewed or downloaded with the owner’s consent and possible remuneration. Copyright has also extended its tentacles to include lending and rental of materials (no copying involved), transforming a work (e.g. “flat” maps into 3D versions), and giving rights to those who perform works so that actors, musicians, singers and dancers all have rights in what they create. There seems no end to the functions that copyright can find a way to protect.

It may seem extreme to call users of copyright “predators” but for this exercise users equate to those who want access to copyright material for their own benefit. From its inception copyright provided a mechanism for this in terms of assignments. An author would pass over their rights to a publisher who would exploit them on behalf of the author, usually in return for cash. During the term of the assignment the author would have no further control over their copyright. But, as more diverse members of society wanted access to material then the only recourse for infringement was the law which was slow, expensive and unpredictable. Owners did not really want to stop the use (note not just copying) of their property but they did want compensation. In the early 20th. century the idea of the licence was born. Those who wanted to perform music in public could obtain a licence from a central body without the need to find individual owners and pay them separately. What the performer was paying for was the right to share in the owner’s exclusive right to perform but did not actually own any part of that right. The whole idea of licences has enabled copyright not only to survive, but to thrive. Licences are now available for almost any form of use. When the CLA grants a licence to copy books and journals it does not give the licensee any rights, just a chance to share in those enjoyed by the owner. These licences are infinitely expandable and can cover thousands of different users, all paying fees for the privilege of copying/using material but the owner retains all the rights which can continue to be licensed to more and more people, generating more and more income without any loss of rights to the owner. What better way to deal with your predator than to provide more and more of what they want without losing anything!

Any organism which has no limits put on it will take over its habitat completely so copyright has always had some constraints such as how long it lasts (14 years in 1709; death plus 70 years now); originality of the work (the banal, commonplace and straightforward copies are not protected); and even where produced in the light of international conventions. Also use of the material so long as it does not seriously affect the owner (copying for fair dealing, education, reporting the news, etc.) and provisions for libraries to make copies and preserve material. Some of these have recently been extended from applying only to books and journals to all forms of copyright material and extending this rule to archives, galleries and museums.

From the above it is clear that the organism called copyright has survived for over 200 years; it has mutated in terms of its habitat, expanded the way it functions and has developed new and constructive ways of dealing with predators...Is it heading for extinction? I don’t think so!

Graham P Cornish is a copyright specialist who has worked in the field since 1983 and advised the British Library on copyright matters for 18 years. He has run workshops and seminars in many different sectors of the information industry. He now works as an independent advisor and trainer in all aspects of copyright under the label ©opyright Circle.

He is the author of Facet Publishing’s Copyright Interpreting the law for libraries, archives and information services for which a revised 6th edition will publish in spring 2019.