THE LEGAL AND SOCIAL PRACTICES IN NEW MEDIA

The development of New Media have also been constrained (and encouraged) by the legal and social practices associated with the preservation and extension of Intellectual Property Rights, or in common parlance copyright and patents. In fact it may be possible to argue that it is difficult to understand how some uses of new media such as peer to peer in its noncommercial forms such as Limewire and Gnutella have developed without considering their attempts to evade the implications of copyright legislation. The transfer of music and movies between users has become so commonplace that many colleges ban the software from their systems as it is such a heavy user of bandwidth. As Dean and Kretschmer have argued, the existence of intellectual property is rooted in capitalist modes of organisation of the economic basis of society.

After all it can be said that if reproduction of books depends on pen and ink there is unlikely to be a problem with the appropriation of texts for distribution of profit (Dean and Kretschmer 2007). In fact copyright, like the right of property in a text, or performance, music or other media representation such as a film or TV programme can only be said to be necessary where it is possible for nonowners to reproduce such a text without incurring some of the original costs. So it is easy to understand copyright in texts where the original author may miss out on royalties when the text is appropriated by another printer. In the case of films it was difficult for piracy to occur in the unauthorised reproduction and circulation of a film via an alternative network of cinemas and film laboratories.

For these reasons copyright and the related laws covering patents and trade marks were generally the subject of dispute between corporations. Even with the advent of video piracy following on from the availability of cheap tape copying the legal struggles were largely between large companies and small entrepreneurs avoiding the payment of royalties. It has only been the advent of home-copying and mass distribution via the Internet that has seen corporations interact in the realm of the law with individual consumers.

It is worth considering whether the opprobrium such cases attract is worth the deterrent effect of such actions. One of the great promises of digital media is the ease with which material can be copied again and again without any degradation in quality. However, scarcity of copies, and access to them, has been one of the ways in which the owners of cultural objects have ensured that they received an income. For example, cinemas, as the only place one can easily see a film on a large screen, also meant that they were convenient places to charge for its use. To explain this requires a short diversion. Since political economy holds that the organising principal of a capitalist economy is the production of commodities (like objects which are both useful and exchangeable) it is important to know whether this is true for cultural products such as music, art, web pages and so on. The essential characteristic of the capitalist economy is the way that it uses systems of property, particularly the ownership of commodities.

The right to ownership demands the acceptance of all parties that it is ‘common sense’ and also supported by the courts where necessary. In this way television broadcasters, for example, are able to disseminate their material as widely as possible without fear of copying and re-broadcasting on a commercial basis. The acceptance that it is impossible without legal retribution means that it is rarely attempted. However, social practice imposes limits on the extent to which copying can be prevented and although home copying is an everyday occurrence and is, strictly speaking, an infringement of the law, its prosecution would be unacceptable to most people. This is just the beginning of the story since the wholesale reproduction of material, particularly in analogue forms, also had problems with degradation of the image, increasingly poor sound, and so on. In contrast digital material is much more easily copied, altered and integrated. This potential for infinite reproduction was first explored in law in 1999 and 2000 around the Napster organisation and the way its software facilitated the free distribution of music files between Internet users.

A different kind of attempt to determine property rights in new media had previously been explored in a landmark case between Microsoft and Apple corporations over issues of ‘look and feel’. ‘Look and feel’ primarily related to the way in which graphical user interfaces developed by Microsoft out of its relationship with Apple brought about infringement of copyright in the digital age. The case was mainly concerned with the integration of known and unprotectable elements (like icons, simple images and screen layouts) which when brought together constituted an overall similarity to an existing interface. Although the case was settled out of court, with Microsoft preserving its right to use a graphical user interface originated by Apple (who incidentally had obtained the idea from Rank Xerox), it established a set of tests for the identification of a property right in a screen representation.

Conclusively; the significance of the ‘look and feel’ case was that it took notice of the ease of replicability enshrined in digital media. Most importantly, it was the first signal that the new media was not to be left to its own devices in this key aspect of commercial use just as television and film had been brought under firm regulatory control. Digital reproduction has again become a major problem with the continued development of the web. The control of distribution has always been a big concern for the owners of cultural commodities. When such commodities could only be distributed by printed page, the pressing of vinyl or by controlled access to the cinema, the difficulty of high capital requirements for the equipment or venue prevented much effective piracy. However, the development of the law in relation to trading in commodities came second to the problems of the protection of ideas that form the property of corporations.

BY MWINYIJUMA REHEMA

BAPRM III - 42686