Copyright law expert Mira Sundara Rajan is also an accomplished concert pianist - photo by Martin Dee
UBC Reports | Vol. 54 | No. 6 | Jun. 5, 2008
Copyright in the Digital Era
By Lorraine Chan
If copyright law is to survive in the digital age, it will have to emerge as a cooperative process between creator and public, says Mira Sundara Rajan.
Sundara Rajan is the Canada Research Chair in Intellectual Property Law and an Associate Professor at UBC’s Faculty of Law.
“Copyright law doesn’t work anymore in practice,” observes Sundara Rajan. “Once a work is in digital form, people can do whatever they want with it.”
In fact, she says the ever-growing frequency of file sharing has put great pressure on traditional copyright industries, including music, and change is bitterly resented by powerful corporations. Their efforts to protect their interests have polarized opinions on copyright.
“People see corporations making money in the name of artists,” Sundara Rajan points out. “The only way for copyright to work is to restore its moral credibility. People need to feel it’s important to respect the rights of authors and artists, and to protect their work.”
These pressures may ultimately end up democratizing copyright. Sundara Rajan says that there’s an opportunity to re-examine the purpose of the law, and in particular, to affirm human creativity in an environment that seems increasingly corporate and technological.
She argues that copyright should focus on the moral and creative rights of authors, while also responding to the public need for access to knowledge. “It’s an issue of human rights.”
Sundara Rajan’s interest in protecting artists’ rights is not solely legal. An accomplished musician, Sundara Rajan tours about six times a year, performing internationally as a concert pianist. Her family enjoys a storied cultural past.
Her late great-grandfather, C. Subramania Bharati is the National Poet of India. Sundara Rajan’s interest in copyright was sparked when she learned of the injustices that occurred after Bharati’s premature death in 1921, largely due to the Indian government’s controversial decision to give his copyright as a gift to the people of India.
Sundara Rajan studies intellectual property issues in Canada, the U.S., the U.K., Western and Eastern Europe, Russia, and India. She predicts that “funky and interesting” developments will continue to force the entertainment industry, record companies and publishers to adapt to the Bittorrent reality.
Ideally, people would be able to do most of what they do now, but it would be accepted as perfectly legal, she says.
“The iTunes model seems to be working really well and appeals to people because of its ease and reasonableness.”
As well, consumers seem to like the pricing and the flexibility of being able to purchase one song versus an entire album, she says.
Sundara Rajan points out that copyright reform is overdue given that our current legal framework stems from legislation that was first passed in the 1700s.
To illustrate her point, Sundara Rajan asks students about their favourite music downloads. She gets a few raised eyebrows and questions about the aggressive lawsuits that U.S. corporations have brought against individuals south of the border.
Sundara Rajan says there’s nothing in the history of copyright law that forces us to assume that downloading is illegal.
“In fact, copyright has always been about controlling commercial use of works. For the past 300 years, there has been nothing in the law that prohibits private and non-commercial use.”
Sundara Rajan says that litigation before Canada’s Federal and Supreme courts, in contrast to the U.S. situation, indicates that music downloading is not yet illegal in this country. However, the Canadian government is looking at copyright reform that will meet international obligations, and which will make it illegal to upload files.
Internationally, the World Trade Organization (WTO) works with the World Intellectual Property Organization (WIPO), a specialist agency of the United Nations, to regulate the use of copyright-protected material in most countries, including Canada.
“Because of Hollywood and the music industry, the United States has put pressure on the WTO and WIPO to increase copyright standards,” says Sundara Rajan.
As a result, there is a “strident debate” between business interests and those like Lawrence Lessig, a Stanford law professor who initiated an open access movement known as “Creative Commons,” which encourages people to share their work for free.
“Corporations want to maintain and even improve upon their situation, by taking advantage of dramatically stronger copyright protection, and they have been diametrically opposed to open access.”
Sundara Rajan says, however, the Creative Commons fails to address important issues such as ensuring that creators are paid and recognized for their work, and preserving the integrity of cultural heritage in a digital context.
In her view, companies should be open to adapting, rather than holding onto their past privileges. Sundara Rajan says the reality is that traditional ways of making money may no longer work. Creators are no longer dependent on the middleman, the most current example being new bands that release their work independently on YouTube.
“Music companies will have new roles to play. They could become networks for distributing music, or platforms for launching new bands. Facilitating, not owning.”