Copyright wars

Last year, the record industry suffered the biggest slump in sales since the invention of the CD - and it blames piracy and illegal downloading of music from the internet.

In contrast, copyright activists accuse the entertainment industry of using technology as a weapon to maximise profits at the expense of individual rights.

Piracy by organised gangs now accounts for about a third of CD sales in the UK, according to the British Phonographic Society, but it also blames the popularity of websites where music fans can exchange music files, usually ripped from CDs.

The basic problem is that digital technology can make perfect copies of originals at the press of a button.

The latest digital movies, the hottest music releases and e-book versions of sensational new novels can all be copied and reproduced perfectly again and again using affordable equipment that's freely and legally available on the high street.

Piracy of original artistic works is obviously wrong and illegal, but the boundary between legitimate use and copyright infringement is often vague.

Which copying is legit and which is out of order? Are you allowed to copy music and movies you own, for personal use? Here is our guide through the minefield.

The history of copying
It's thanks to Charles Dickens that copying is a crime in Britain.

Admittedly, he had a big problem with publishers of 'penny dreadfuls' selling such rip-off publications as Oliver Twiss and Nicholas Nickleberry (really - we're not making these up).

Back in the 1840s, universal literacy and new steam-powered presses combined to create a potent mass market.

The law took some time to catch up but eventually, it was made an offence to copy original artistic works, including books, music and pictures, without a licence from the creator of the work.

For a century, pirating popular books or prints was strictly for professionals who had the skills and the equipment.

In the 1960s, however, the advent of cassette tape recorders and office photocopiers made it possible for everyone to make copies of records and books.

The lawyers went mad. Attempts were made to ban both devices, on the grounds they were invitations to pirate copyrighted works.

The industry countered by pointing out that they had many legitimate uses. Cassette recorders could be used to play pre-recorded, royalty-paid tapes and photocopiers could be used to multiply copies of the copiers' own work.

The courts accepted this argument and both technologies were huge successes.

In some countries, a copyright levy was imposed both on blank tapes (and later on blank recordable CDs) and on photocopiers, to compensate copyright owners for the piracy that everyone accepted would take place.

The arrival of the video cassette recorder (VCR) brought Hollywood into the battle.

Right at the start, when Sony launched its Betamax video system onto the US market, the film studios got together to try to get it banned.

The case went all the way to the Supreme Court, which rejected it, saying the legitimate uses for video recorders outweighed the possible uses for piracy.

In the UK, the industry held back until Amstrad really rocked the boat in the mid-1980s by launching a twin-deck VCR, making tape-to-tape copying easy.

The industry called this a basic tool for piracy and sued but eventually lost in the House of Lords.

Video piracy soon became a serious problem for those in the film and music industries, though it's success was limited by the technology itself - a copy of a copy of a copy is usually very poor indeed.

However, everything has changed with the arrival of digital technology.

Bit by bit
Unlike analogue material, digital material can be duplicated perfectly any number of times.

Since a copy is perfect, it too can be copied perfectly, and so on. Add in the fact that there's a global network in place that's designed to distribute digital information - the internet - and the result is a copyright-holder's worst nightmare.

The first victim of major unauthorised digital copying was the audio CD. Software for 'ripping' the music off CDs and compressing the resulting files to make them smaller while preserving sound quality became commonplace in the late 1990s.

People were soon sending the resulting MP3s to their friends over the internet.

Although undeniably a problem, file sharing on this level didn't pose much of a threat to record companies.

When Shaun Fanning launched Napster in 1999, this all changed.

Napster allowed people to connect to a server on the internet and exchange their MP3 collections.

Log in to a Napster and not only did it make your MP3 collection available for everyone to see, but you could also search the collections of everyone else on the server and download anything that took your fancy.

Napster was slow, flaky and overflowing with poor-quality MP3s, but that didn't stop it from becoming a phenomenal success.

Unfortunately, artists and their record companies soon took exception to people obtaining their wares free of charge and Napster was eventually closed down in 2001.

Where Napster trod, however, others followed, and soon other file sharing services were springing up. Kazaa was one of them and, surprisingly, is still going.

Its survival is largely down to the fact that it's a very decentralised service with no servers of its own - it just puts its members in contact with each other.

The company is registered on the tiny Pacific island of Vanuatu; the software is owned by a company in Estonia; the website is registered in Australia and the people controlling the operation were last heard of in Canada.

Listen up
In addition to dragging file-sharing services through the courts, the recorded music industry is also actively fighting piracy in order to protect its own interests.

Record companies have already experimented with copy protection systems such as Cactus Data Shield and KeyAudio, which claim to be able to code the contents of a CD in such a way that it can be played in hi-fi CD players but not in CD-Rom drives on a computer.

So far, no record company has admitted to placing such systems on discs sold to paying customers, perhaps because they may infringe upon consumers' rights to play music they have paid for on any device they choose.

Nonetheless, it is strongly rumoured that thousands of discs by artists such Michael Jackson, Celine Dion, Natalie Imbruglia and Eminem have been issued both with and without copy protection, to see if copy protection caused a backlash.

Although no data has been released, it is said that adding copy protection caused big problems with unacceptable background noise or even failing to play at all. The copy protection systems have also proved easy to crack.

One wheeze is simply to cover the copy protection tracks on the outside edge of the disc with a black marker pen.

The record industry has also been releasing 'watermarked' MP3s into file sharing systems in order to record their progress.

Watermarking conceals a code number in an MP3 in such a way that it can only be detected with a specialist 'reader'.

Watermarks don't prevent copying but they do allow copyright owners to prove their ownership of a particular recording. It is extremely difficult (and illegal) to remove a watermark.

Many industry observers feel that watermarking and vigilant policing is enough to stamp on piracy without impinging on the right of the individual to make copies for personal use.

Unfortunately, that would require investment and detailed record keeping, neither of which appeal to an industry looking for a magic solution that would prevent any copying at all of digital recordings.

The Secure Digital Music Initiative (SDMI) was thought to be just that solution.

Take the initiative
SDMI was set up by the recording and home electronics industry in response to the sudden popularity of MP3 music downloads.

Then the rise of Napster's home-copying and file-swapping service gave new urgency to the programme.

The aim was to install a chip in every player that would only allow legal recordings to be played.

The technology was announced in September 2000 with a fanfare and a challenge to hackers to break the system if they dared.

Within three weeks, academics at Princeton University, led by Professor Edward Felten, cracked the code and were about to present a paper on how they did it when the Recording Industry Association of America (RIAA) threatened to sue.

The music industry is also said to be planning a pre-emptive strike on peer-to-peer file-sharing systems such as Kazaa, by releasing MP3 files with a virus attached that monitors its every move and reports back to the RIAA.

If this is true, it would cause a major consumer backlash.

Corporate muscle
The recording industry is pressing for draconian copy protection legislation both in the US and the EU.In the US, a bill proposed last year by the South Carolina Senator Ernest Hollings caused a major backlash from the technology industry and human rights activists.

The measure would have forced technology firms to include copy protection in every CD-RW drive, hard disk and the servers that store recordings for distribution on the internet.

In Europe, the European Copyright Directive will make it illegal to tamper with copy-protection software or microchips.

Regulations that will implement the directive in this country are currently being prepared by the Patent Office, which is said to be encouraged by the furious reaction it has had from both sides of the fence, which, according to one analyst "shows they must be getting the balance about right".

Activist groups such as the Electronic Frontier Foundation (EFF) and the Alliance for Digital Progress (ADP), which brings together technology giants Microsoft, Cisco, Intel and Apple - as well as several consumer groups and think tanks - are fighting for more rights for individuals to use digital material they have bought in whatever way they want.

The most effective opposition, however, comes from the consumer electronics industry, which wants to sell lots of DVD recorders and MP3 players.

This can lead to divisions within companies. Sony, for example, is said to be in a state of civil war with its hardware operations fighting its film and music divisions.

On one occasion, Sony joined in legal action to suppress a website partly owned by - wait for it - Sony.

To this day, Sony has not launched a hard disk-based digital music player. Instead, the Japanese giant is focusing all its energy on solid-state and MiniDisc-based players that employ its own secure ATRAC music compression system.

Right on
It is impossible to predict which side will win. If freedom to copy and swap digital material is achieved, artists will not be paid and the flow of new creativity will be stifled.

On the other hand, if the entertainment industry is granted the powers that bodies such as the RIAA wants, prices will remain high and consumers will rightly feel ripped off.

There is, however, a feature of copyright control systems that may provide more freedom of choice for consumers.

The latest systems can be set to provide a range of options, such as the ability to play only once, a limited number of times or unlimited times.

This would allow movies to be priced for a single playback at a similar level to renting a video for an evening but with the convenience of downloading it over a broadband link.

Music could be sold on the same basis, so hosts could download an evening's music at low cost without having to invest in CDs.

Unfortunately, it may be too late. The music industry in particular has allowed a culture of free file swapping to grow and that will be difficult to reverse.

LEGAL EAGLES: TAKE CARE TO STAY WITHIN THE BOUNDS OF THE LAW
British copyright law is one of the tightest in the world, designed to prevent any copying of original work.

"You are not allowed to make a substantial copy of any copyright work, either as a whole or any component part," explains Anna Booy, a solicitor specialising in intellectual property law. There are very few exceptions to this.

Teachers and students are allowed to cite quotes out of copyright works for study purposes, and critics may reprint short sections in reviews.

"There is a 'time-shifting' defence, under which you can make temporary recordings of broadcasts for viewing later," Ms Booy says. But that is all.

"You are not supposed to make libraries of tapes," she says.

It is not even legal to make a copy to play on another machine. "There is a common misconception that copying is allowable for personal use, as it is in the US," Ms Booy says.

"The music industry regards that as a lost sale and the only reason people don't get sued is that it would generate bad publicity."

So it is not even allowable to make up an audio cassette of favourite CD tracks to play in the car on your long commute into the office, though Ms Booy allows that the industry is unlikely to sue a music-lover for doing this.

The next step in copyright law is the controversial European Directive on Copyright and the Information Society, which seeks to prohibit tampering with copy-protection devices.

The government has yet to produce the regulations that would make this part of British law, however.

In the UK, copyright lasts from the date of publication to seventy years after the death of the author.

Complex formulae are used on collaborative works such as movies, where the dates of death of the director, the writers and the composer of the score all have to be taken into account.

The movie's stars have no rights, a thought that may bruise some Hollywood egos.

RE-WRITER'S BLOCK
Given that it provides the operating system on 90 per cent of desktop PCs, Microsoft is obviously very keen to discourage what could be seen as media piracy.

To that end, the latest version of Windows Media Player contains something called Digital Rights Management (DRM).

DRM allows a copyright holder to encrypt their digital information so that it can only be played by someone who has the appropriate licence.

In short, it allows digital music to distributed freely but only played by people that have paid for it.

DRM can only be used on files encoded with Microsoft's own proprietary WMA digital file format and for the moment at least, this isn't anywhere near as popular as MP3.

Whatever your opinion of DRM, there's no denying that it's a versatile way of protecting digital music, providing that it's implemented sensibly.

Once a DRM-protected file has been downloaded, Media Player will attempt to acquire the necessary licence as soon as the file is played.

Most licences will need to be paid for but since DRM can restrict the number of times a file can be played, it's not inconceivable for a record company to give a free 'play-once' licence, with subsequent plays requiring payment of a fee.

LIGHTEN UP THE LAW
Cory Doctorow believes in the fundamental honesty and generosity of people. People, he says, will pay for the movies, music and books they have enjoyed without having a pistol put to their heads.

To prove it, he put an electronic version of his first novel, Down and Out in the Magic Kingdom, on his website for free download, as well as publishing it in paper form (available at www.amazon.com for $16).

Readers who have enjoyed the electronic book are invited to pay by buying the paper version; even if you don't want it on your shelves you can always donate it to school, Mr Doctorow says.

Mr Doctorow believes publishers, whether of books, music or images, could reap huge benefits by lightening up on copyright protection.

But as an activist for the EFF, he also maintains that copyright restriction technology is powerless against well-financed and technologically-savvy counterfeiters, but allows publishers to infringe the rights of consumers.

"Making a copy for private use is not copyright infringement - it is legal to make an archive copy in another format," he points out.

"Using copy restriction technology won't slow down hackers or Far Eastern counterfeiters, it just keeps honest people in chains."

The correct way to stamp out copying is by legal action, Mr Doctorow believes. "We have a great weapon against counterfeiters already," he says. "It is the police."

Mr Doctorow is also concerned about the latest moves in the US to extend copyright protection to 70 years after the artist's death.

This will take authors such as F. Scott Fitzgerald and Ernest Hemingway back out of the public domain and will also keep many less well-known but deserving authors in obscurity because the copyright holders will not give up their rights but will not publish their works themselves.

"We are suggesting a bookkeeping change - after 50 years, copyright owners must pay a dollar a year to keep their work out of the public domain," says Doctorow.

"That way, if copyright holders have simply forgotten they own it or are not interested, the works would be available."