Copyright Law and Technology : Challenging the concept of Balance

The copyright law has symbiotic relationship with technology. The new technology  enables a noble ways to enjoy copyrighted content, which opens a new markets for artists to sell their licensed works but when technology opens multiple ways to access the copyrighted works the problems between copyright and technology arises.  The  two paradigms exist to analyze the existential crisis and the technological paradigm . In the political-economy model, the death of copyright owners, which negates the original, true meaning of copyright law

The technological paradigm argues that digital technology has rendered copyright law , dangerously ineffective.

The concept of balance has become a fundamental notion that various legal policies and commentaries are not only striving to achieve it, but also regarding it as an orientation principle for copyright law’s amelioration.

The concept of ‘balance’ or the act of striking the right balance wideness the gap between the various position  concerning the copyright and technology.

what is balance

  • the achievement of striking balance between private needs and public interest
  • interpreter of statutory principles as decided by court
  • being the essential core by becoming a structure, value and central principle of copyright law

The term “Balance in IP Law ” has not ever been mentioned in earlier IP treaties and legislation , the 1883 Paris Convention, the 1886 Berne Convention or the 1891 Madrid Agreement, none of the TRIPS Agreement has ever referred to the term until 1996.

The TRIPS Agreement was the first major international treaty to use the term ” balance ” in Article 7 in the context of objectives of IP protection :”The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, in a manner conducive to a balance of rights and obligations”

The 1996 World Intellectual Property Organization Copyright Treaty (WCT) recognizes “the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research, and access to information.” In a similar vein, the 1996  WIPO Performances and Phonograms Treaty (WPPT) recognizes “the need to maintain a balance between the rights of performers and producers of phonograms and the larger public interest, particularly education, research, and access to information.

The technological change is characterised by a high rate of innovation and an unpredictable outcome and because the innovation is rapid and unpredictable, the adaption of copyright law lags behind the introduction of new technological advancements.

The delays are due to

  • the creations of new laws which takes time as the law making is a complex process which involves procedural safeguards and many different institutions
  • the dynamic and unpredictable nature of technological innovation makes it difficult for the law makers to predict and anticipate the forthwith inventions
  • due to unpredictability of innovations necessitates the deployment of open-minded standards in copyright law

Therefore, we need a fair and balance copyright system that

(1) protects exclusive rights

(2) streamlines ways to license these rights through efficient business models that make it easy for consumers to access and use content lawfully,

(3) allows room for appropriate exceptions and limitations that should always stay exceptional and not harm the rights holders’ ability to continue innovating and continue creating and producing new works. Such a system would be a positive force for economic and cultural progress everywhere.

The digital technologies provide new opportunities for authors and producers to create interesting enhancements based on existing works but these technologies also make it harder to determine the boundaries between true derivative works and mere copies. Therefore, the detection of infringement and the subsequent enforcement of rights become increasingly difficult and costly. Rights holders, in this disrupted environment, gravitate toward building technological and contractual barricades around their “property” because monetizing copyrightable “products” is very profitable today. Fair uses of protected works (an important sphere in which education and scholarship operate) can also be constrained in this environment, since technology permits creators and producers to more perfectly control access to their works and to dictate how these are used.

Technologies exacerbate this tension by also making distribution easier, faster, and cheaper. Therefore some copyright owners agitate for expanded  protection because of the real and perceived threats of “piracy,” they fear that their market will be undercut because of the speed and ease with which digital content can be copied and disseminated, thereby negating the limited-time advantage of their monopoly

Likewise, licensing is replacing the sale of digital content, and this shift carries with it more control by content owners. The licensing model enables copyright holders to determine which uses are the most productive and then licenses these accordingly. Technological constraints on the use and reuse of content give copyright owners the ability to control the after-market use of all their digital content, which is especially problematic in higher education, where sharing and building on the knowledge of others is fundamental.

Digital technologies enable new forms of communication, interaction, and presentation in unimaginable ways that can enrich teaching and learning . These technologies also bring the higher education community face-to-face with the tangled web of copyright issues. According to  Kenny Crews: “Research and education seem to be routinely reinvented with the creation of new software and technological devices.

To conclude copyright policy should serve the constitutional purpose of promoting “the progress of science and the useful arts” while maintaining the balance between public and private interests. Hence in today’s copyright policy atmosphere, the balance favors the incentives and rewards for rights holders more than is necessary to maximize creative production.

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