Copyright law has the challenge of having to continuously reinvent itself in light of emerging technologies while not acting as a barrier to creativity and innovation, says Antonio Ghio.
I remember the days when you could enter Valletta, go to a computer shop and feel as if you had entered an à la carte restaurant. You would ask the shop assistant for the ‘catalogue’, a thick menu full of game lists mostly for the Atari and Amiga platforms. Then, all you needed to do was simply choose a game title from the catalogue and after a couple of minutes, the shop assistant would hand you a copied diskette containing your game for a minimal fee of Lm1.50 (€3.50). Not such a bad deal for a 10-year-old intent on building his own game library on a budget.
People who are comfortably downloading pirated titles in the comfort of their own home are not really scared that someone in a black suit will come knocking at their door soon- Antonio Ghio
Those were the days when our copyright laws were still stuck in the 19th century, with no reference or protection provided to computer software as literary works. If one had to look at the parliamentary debates of November 1992 relating to the amendments to the Maltese Copyright Act being discussed, one would be completely shocked.
Some MPs claimed that protecting computer software under copyright laws would stifle the right to education, while others went as far as claiming that computer software stifled creativity and could not be considered as creative. Tell that to the 250-plus people who sat in a studio for the past 24 months writing Modern Warfare 3.
Well, the world has changed. Our copyright laws are in full synch with European directives and international statutes, and the high level of protection we are providing ensures Malta can place itself as a true ICT centre of excellence.
But the rise of peer-to-peer networks and Web 2.0 technologies has constantly challenged our accepted notions of copyright ownership in relation to computer software and digital media. Physical sales of music albums and DVDs have since plummeted; music labels and film studies have shut down. The availability of fast broadband connections has meant one can download practically anything very quickly.
Latest figures show that during the past five years, illegally downloaded games have increased by 20 per cent. One potential explanation might be that people who are comfortably downloading pirated titles in the comfort of their own home are not really scared that someone in a black suit will come knocking at their door soon.
Does this mean present copyright laws are not sufficient?
That was the conclusion reached by some jurisdictions such as the UK and France. The UK’s Digital Economy Act of 2010 as well as France’s HADOPI Law proved very controversial.
Many were those critics who said the long hands of the big studios and their big lobbying budgets were behind the promulgations of these laws and that the balance achieved between copyright enforcement and innovation is wrong.
The latter is especially apparent when one tries to juxtapose the Digital Economy Act and the HADOPI law with the position taken by the European Parliament in 2009, where it was concluded that a user’s internet access may be restricted, if necessary and proportionate, only after a fair and impartial procedure including the right of the user to be heard was properly followed.
Now, various technology companies, including Google, Facebook and Twitter, are openly and vociferously opposing the bill regarding the Stop Online Piracy Act (SOPA) in the US, saying the proposed new laws – which would require internet and technology companies to monitor websites and block sites linked to online piracy – are nothing more than censorship.
The notion of sharing copyrighted material is facing a bumpy road indeed. While one can easily come to the conclusion that file-sharing has generated quite a good number of lawsuits on both sides of the Atlantic, one cannot deny the fact that not all file-sharing is illegal.
The ease with which an internet user can get hold of pirated material is incredible. The mushrooming of file hosting sites throughout the world as well as the present ambiguities relating to the interpretation of copyright law mean new forms of copyright protection and licensing have to be devised to allow the protection of copyrighted material on one hand, and the ability to create and share information on the other, through the promulgation of various new forms of licensing, sharing and publishing rights such as those put forward by Creative Commons.
While it is now (as opposed to 1992) clearly evident that copyright piracy is theft and should therefore be controlled, one has to appreciate that the fact that our copyright law protects computer software as well as other digital media might not be properly reflecting our internet age.
Nowadays, copyright law has the challenge of having to continuously re-invent itself in light of emerging technologies while not acting as a barrier to creativity and innovation.
In view of all this, I am facing a serious dilemma. Should I dispose of the stacks of three-and-a-half-inch diskettes containing so many fond memories of my childhood in case the bogeyman comes knocking on my door, or should I treasure them in the hope that in a few years my son will enjoy some bonding time while having a go at Ikari Warriors in two-player mode with his dad?
The truth is I am not so sure he will be amused at the troglodyte graphics. In any case, I think I’ll hold on to them for a little while longer.
Send your digital dilemmas to techeditor@timesofmalta.com and our resident ICT lawyer will answer your questions.
Dr Ghio is a partner at Fenech and Fenech Advocates, specialising in ICT law (www.fenechlaw.com). He also lectures in ICT Law and Cybercrime at the University of Malta.