Richard Kemp
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An inventor develops a new technology that results in a revolution in the way content is communicated. A smart entrepreneur sees its potential and gambles on it, amassing a vast fortune. The Government of the day at first liberalises laws governing the new technology in order to “let the information be free”. But they are tightened by subsequent legislators concerned that the entrepreneurs have grown too big, gained too much power.
This may sound like the story of the internet: Tim Berners-Lee joining up the dots to create the world wide web, Bill Gates turning Microsoft on a sixpence in the mid 1990s to ride its crest, regulators stepping in to bring the lawless new frontier under control. But it's actually the story of the printing press.
Johannes Gutenberg invented it around 1440. William Caxton published the first book — written by the king’s brother in law — in 1477. Book imports were liberalised by the Importation of Books By Aliens Act in 1483, then severely restricted by Henry VIII’s Printers and Binders Act in 1533.
These examples, half a millennium apart, illustrate enduring forces: the unlocking of technological innovation for mass adoption; successful innovators locking in benefits and becoming powerful; and the legal response of the State: to liberate or regulate?
Today, with "convergence" happening on an epic scale, these forces are gaining momentum and the law has to run faster and faster to keep up. This is having a profound affect on the law, particularly in the areas of copyright, communications and competition.
In Through the Looking Glass, Humpty Dumpty famously says: "When I use a word, it means just what I choose it to mean, neither more nor less." Lawyers scornfully refer to terms with subjective definitions as "humpty dumpty" terms, and convergence is a classic of the genre — it means something different to everyone. In business terms, it can be seen as Moore's law (computer power doubling every 18 months) driving the coalescence of four previously distinct sectors: media/entertainment, software/computing, communications, and consumer electronics. If you want to get more technical, you can see it as a melding together of the basic building blocks, the 0s and 1s, with the various channels of distribution and the terminals we use to process content. Put it all together, you have a volatile and fast-moving mix to challenge lawmakers, regulators and the courts.
A historical legal perspective helps here. Looking back at how the law has developed in relation to new technologies, we can see that it has been much better at adapting than we give it credit for.
Copyright, driven by the rise of the printing press, was the first regulatory regime. Copyright protection for books in the UK dates back to the Statute of Anne in 1709. Musical works first attracted protection in 1777, when the courts ruled that, for copyright purposes, they were essentially "books". Photographs were first protected in 1862. In 1911, driven by Edison's invention of the phonograph in 1877, the Copyright Act conferred protection on sound recordings as if they were musical works. In 1956, a new Copyright Act confirmed protection for films, TV and radio broadcasts and performance rights in sound recordings. Computer software waited until 1985. Satellite broadcast and cable programmes got there in 1988.
In each case, copyright law played catch-up with a new technology but generally got there in the end. Certainly, its development has been more evolutionary than revolutionary, but time and again it has risen to new challenges and expanded to protect a greater number of works.
In recent years, as the pace of technological development has grown ever more dizzying, so has the pace of legislative change quickened: since 1991, the EU has passed ten copyright directives addressing the impact of convergence.
Another key area of law affected by convergence is communications regulation. Initially, until 1981, there wasn’t much of it at all: the Government nationalised the telephone system in 1912 and brought it under the old postal monopoly. Since 1981, however, the story has been one of liberalisation and deregulation of networks and services to keep pace with developments in cable and satellite, three generations of mobile phones, WiFi and broadband. Today, the rule book — the Communications Act 2003 — is pretty thick.
As content and the means of delivering it have converged, a third area of the law has become ever more important: competition. It’s in this sphere that the law’s influence on technology can be seen most starkly.
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Some important lessons from legal history about printing that have been missed:
1 - the rules were often (indeed usually) ignored, and barring sporadic clampdowns, this was usually the more sensible (and profitable course) for businessmen;
2 - once large numbers of people began to print illicitly, the authorities were usually unable to control the market at all;
3 - copyright protection only emerged after two hundred years of other experiments. For businesses that degree of lag is so slow that it is quite possible to make all the money that is required and largely ignore the changing legal landscape.
Simply adding in some different facts gives a completely different perspective on the question...
John Scott, London,