The Designs and Patents ACT 1988

Nowadays, it has become a commonplace assumption that the enactment of various copyright laws is being solely concerned with protecting people’s intellectual property, as something that has a value of ‘thing in itself’. Such assumption, however, cannot be referred to as thoroughly valid. The reason for this is simple – the actual purpose of copyright laws’ enactment is to create objective preconditions for the cultural, social and scientific progress, fueled by creative people’s ingenuity, to continue gaining momentum. As it was noted by Baker: “As with drug patents, copyrights serve an important public purpose. They provide an incentive to produce creative and artistic work”.¹ Therefore, it will only be logical to conclude that, if a particular copyright law ceases to serve the purpose of society’s betterment, it would have to be revised or dropped altogether. After all, there can be little doubt as to the fact that, as time goes on, a number of different copyright legislations continue to grow ever more outdated. This simply could not be otherwise, especially given the fact that the exponential progress in the field of IT technologies, which had been taking place during the course of recent decades, effectively undermined the legitimacy of a number of theoretical premises, upon which many of these legislations continue to be based. In this paper, I will aim to explore the validity of an earlier outlined thesis at length, while discussing what accounts for the overall discrepancies of Designs and Patents ACT 1988 (CDPA), as such that is being inconsistent with the realities of ‘informational living’, made possible by the emergence of Internet.

The foremost legal principle, which has been providing legitimacy to CDPA since its enactment in 1988, is sui generis. According to this principle, the third parties that invested in promoting/distributing a particular form of intellectual property are in position to gain financial benefits from this property’s distribution. While elaborating on implications of sui generis principle’s incorporation into CDPA, Lai states: “Content is protected not as it is with copyright as the expression of intellectual creation; rather it is protected because of the investment involved in assembling it, however inspired or mundane the labour actually is”.² Apparently, the fact that the sui generis principle is being prominently featured within CDPA’s legal framework points out this legislation’s recentness, because it is specifically during the course of twentieth century’s second half that the process of reproducing a copyrighted informational content, in the form of ‘hard copies’, attained the contemporary level of profitableness. In its turn, this also explains why, contrary to the traditional conventions of British Common Law, CDPA refers to one’s intellectual property in terms of a ‘copyright’ rather in terms of an ‘author’s right’.

At the same time, however, this shows that CDPA was introduced before the rise of the Internet changed the very nature of informational transactions. The reason for this is apparent – CDPA’s legal provisions treat copyrighted information as such that necessarily imply materialness: “Copyright Designs and Patents Act 1988 gives to the investor… a rental right for sound recordings, films, and computer programmes”.³

Nevertheless, in the light of what represent the actual mechanics of information’s distribution in the networked environment (such as World Wide Web); such CDPA’s provisions appear to be deprived of any rationale, whatsoever. Let me elaborate on this suggestion at length.

It is important to understand that, up until comparatively recent times, it would never occur to anyone that the information’s physical medium could be distinguished from the actual information per se. After all, prior to mid-eighties, the copyrighted information’s distribution could not be imagined outside of what represented the particulars of distributing books, tapes, CD discs, etc., on which this information was actually recorded. The emergence of Internet, however, changed this situation rather drastically, as it created a qualitatively new ‘digital realm’, within which information’s circulation does not depend on the existence of any physical carriers. In material world, producing the copies of copyrighted content costs money, which is why it is perfectly logical for any affiliated third parties to be expecting to make a profit on distributing such content. In the ‘digital’ world, however, it is only the actual creation of an original content, which requires the investment of intellectual and financial recourses; whereas, such content’s copying is does not presuppose any additional investments.

The significance of this innovation can be hardly underestimated. After all, the fact that just about any form of copyrighted information could be freely distributed over the Internet, with no additional charges applied, presupposes the sheer out-datedness of the very concept of ‘serial production’, for as long as multiplying the copies of one’s intellectual property is being concerned. Yet, such a ‘production’ even today remains utterly profitable. For example, as of 2000, 5% of America’s GNP accounted for the commercial activities, associated with selling the ‘hard copies’ of a copyrighted informational content. In its turn, 95% of the actual income, generated by these activities, went straight in the ‘pocket’ of large media-corporations, which do not create any copyrighted intellectual property per se, but purchase the right to be reselling the copies of this property on an industrial scale – hence, making huge money out of the thin air.⁴

The mechanics of how it is being done are quite simple, as they naturally derive out of the concept of ‘economy of scale’, which presupposes that the extent of just about any commercial enterprise’s profitability exponentially relates to the scale of such enterprise’s manufacturing activities. For example, whereas, the self-cost of manufacturing 1000 CDs equals $1 per disc, the self-cost of manufacturing 100000 CDs equals only $0.1 per disc. Yet, as we are well aware of, CDs with a copyrighted content are being rarely sold for less than $20 a piece. This example, of course, is being rather illustrative than factual. Nevertheless, it does explain why, along with arms trade and drug trafficking, the selling of a copyrighted informational content in forms of ‘hard (material) copies’ remains utterly lucrative.

Nevertheless, as history shows, the sheer lucrativeness of certain commercial activities can never be thought of such that may last into infinity, especially if these activities are technology-intensive. The reason for this is simple – as time goes on, technological progress continues to transform the very essence of socio-economic reality’s emanations, as well as people’s attitudes towards these emanations. Therefore, it is only natural that, as technological breakthroughs continue to alter the existential modes of more and more people, many of formerly profitable segments of world’s economy face the prospect to end up having the extent of their profitableness substantially reduced.

This is exactly what happened with today’s industries that, contrary to the very logic of a modern technology-intensive living, continue trying to sell the ‘hard copies’ of a copyrighted informational content. After all, these industries offer customers the copyrighted informational products for money, while often requiring them to make a trip to the store, in order to be able to acquire these products. However, mentally adequate individuals will never be willing to purchase the desired informational product for money at the store, for as long as they can download the same (although charge-free) product off Internet, without even having to leave the privacy of their homes.

While understanding this perfectly well, the political lobby in British Parliament that acts on behalf of world’s transnational media-corporations (such as Sony Entertainment, for example), succeeded in ‘adjusting’ 1988 CDPA, so that the provisions, contained in this legislation, would concern the legal aspects of copyrighted materials’ distribution over the Internet, as much as they concern the distribution of copyrighted information’s ‘hard copies’: “In relation to works in hard copy form CDPA will normally require some positive act of (infringing) distribution, but in a networked environment, making copyright infringing files available for download by users will achieve the same effect”.⁵ In other words, even though transnational media-corporations do not spend even a penny on distributing a particular copyrighted content via Internet (because this distribution does not involve manufacturing content’s ‘hard copies’); their spokesmen nevertheless continue to demand money from the ordinary citizens, simply because these companies have grown used to generating huge profits – pure and simple. In other words, currently enacted copyright laws, such as 1988 CDPA, result in slowing down the pace of technological progress. In its turn, this can only benefit moneybags from the earlier mentioned transnational media-corporations.

It is understood, of course, that while striving to prevent ordinary citizens from being able to take a full advantage of Internet, the representatives of ‘copyright lobby’ try to justify their less than admirable activities, in this respect, by suggesting that they simply want to prevent the infringement of creative people’s ‘intellectual rights’. In fact, some of them go as far as suggesting that Internet-users’ tendency to share copyrighted information with each other (P2P), undermines the integrity of a free-market economy. ⁶ After all, if writers, actors and musicians are to deprived of a good part of their potential income, by the mean of having their intellectual property available for free-of-charge download from Internet, then what is going to stimulate their creative genius, in the first place?

Nevertheless, the closer look at such a suggestion reveals its conceptual fallaciousness. After all, the introduction of more and more different rules and regulations, concerned with ensuring bureaucratic control over just about all the aspects of Internet-based informational exchange, is of essentially Socialist nature: “Patent and copyright protection… are forms of regulation, not elements of a ‘free market’”.⁷ It goes without saying, of course, that the fact that Internet renders the distribution of a copyrighted content in forms of ‘hard copies’ outdated, will result in reducing creative people’s potential profits. At the same time, however, it will prompt them to seek qualitatively new ways for turning their creativeness into the instrument of making money. After all, the discovery of oil, as a new source of energy, did not result in dismantling railway systems, even though that prior to oil’s discovery, trains used to operate exclusively on coal.

This is exactly the reason why, even though that Western copyright legislations do provide legal means for the creators of informational content to be able to gain financial benefits out of their own creativeness, they do not prioritize the considerations of protecting one’s ‘author right’ over the considerations of ensuring society’s overall well-being. As it was pointed out by Ginsburg: “Creators should maintain sufficient control over new markets to keep the copyright incentive meaningful, but not so much as to stifle the spread of the new technologies of dissemination”.⁸ Therefore, it is quite inappropriate to think of one’s right to remain in full control of its own intellectual property as representing an unquestionable legal imperative, especially if the nature of contextual circumstances is not being considered.

This brings us back to has been said earlier, in regards to the fact that in its present form, 1988 CDPA does not ensure the rights of individual patent/copyright holders, as much as it ensures transnational media-corporations’ ability to enjoy the essentially unjustified lucrative profits. It is important to understand that the Internet-based P2P file sharing, which 1988 CDPA deems ‘illegal’, has only indirect negative effects on the actual creators of copyrighted informational content. For example, even today 75% of the annual income, generated by America’s movie-industry, comes from movie-theaters. Essentially the same can be said about musicians and singers, who make most of their money by the mean of staging live-performances to their fans. In other words, if there were any concerned parties that do suffer from Internet-based file sharing activities, it would be the earlier mentioned monopolistic media-corporations. Nevertheless, contrary to what the representatives of British ‘copyright lobby’ want us to believe, there is nothing utterly inappropriate about the process of these corporations’ functioning becoming progressively less profitable. Moreover, the fact that such media-monsters as Sony Entertainment are now having a particularly hard time, while trying to encourage people to pay as much as $20-$50 per copyrighted CD or DVD, serves public interest. This is because file-sharing practices, to which currently enacted CDPA refers in terms of a ‘copyright infringement’, do in fact stimulate people’s creativeness – whatever the improbable it may sound. The full soundness of this suggestion can be illustrated with ease.

Why is it that, as it was already mentioned, the highly sought-for musical CDs are being sold for the price of often thousands of times higher than what appears to be these CDs’ manufacturing self-cost? This is because, contrary to what many naïve people believe, media-corporations do not simply pick out singers or musicians to sign up a contract with, but they actually ‘create’ these singers and musicians by investing millions and millions of dollars to increase the commercial appeal of otherwise mediocre performers’ intellectual property to the marginalized masses. However, as practice shows, the objective value of a copyrighted informational content, promoted by media-corporations, is being rarely correlative with this content’s ‘perceived’ value. What it means is that transnational media-corporations are not being as much interested in helping individuals to realize the full extent of their artistic creativeness, as much as they are being interested in the artificial lowering of people’s aesthetic/intellectual standards – hence, making it easier for them to share the dubious values of a greed-driven mass culture.

The actual mechanics of how this is being achieved can be illustrated with the example of Britney Spears’s career. Despite the fact that, as it now became clear, Britney Spears did not even write her songs (this was done for her by the ‘group of professionals’), she nevertheless had all that it takes to become a celebrity – the looks of a ‘girl next door’.⁹ After millions and millions of dollars have been pumped into promoting this ‘singing sensation’, she attained the much-desired status of a celebrity. As a result, Spears can now well afford doing the usual ‘celebrity stuff’ – snorting cocaine, riding sport-cars into the lamp-poles and taking part in ‘feed the hungry children of Africa’ publicity-campaigns. Spears’s corporate promoters were also able to benefit rather enormously from her ‘rise to the stars’. This, however, cannot be said about the millions of Spears’s teenage-fans, who were encouraged by the media-corporations to spend their lunch-money on buying CDs with their idol’s ‘masterpieces’, which do not represent even a slightest musical/aesthetic value.

The earlier provided example suggests that, contrary to the claims of ‘copyright hawks’, the third-party distributors of a copyrighted informational content do not act on behalf of this content’s actual owners, as it should have been the case according to the provisions of CDPA, but they actively participate in the process of such a content’s creation. Moreover, they strive to enforce this content upon intellectually marginalized buyers – hence, depriving them of a chance to consider the possibility of choosing in favor of independently created (alternative) informational content. In other words, the fact that currently enacted CDPA is often being utilized for combating Internet-based ‘piracy’, stands in striking opposition to the original purpose of this legislation’s enactment – namely, the creation of legal preconditions for people to be able to benefit from their creativeness. After all, it is specifically the existence of file-sharing P2P programs, which now allows genuinely creative individuals to introduce their works to the world, even if these works are not being reflective of mass culture’s conventions. In its turn, this explains why, despite all the efforts, applied by the corporate label-holders to discourage citizens from indulging in ‘digital piracy’, most people do not think that there is anything immoral about downloading films/songs off Internet: “The widespread acceptance of this (file-sharing) activity, at least in some segments of the population, suggests that this is seen as something more akin to recording a song off the radio than stealing a CD from a record store”.¹⁰ Apparently, an abstract law does not define the extent of a particular behavior’s moral appropriateness, but it is namely people’s innate predisposition to consider certain activities moral or immoral, which defines the essence of just about every law’s implicational subtleties.

For example, it may well be assumed that the actual reason why most people consider stealing a morally despicable act is that Jesus had once commanded ‘thou shalt not steal’. Such an assumption, however, could never be considered fully rational. After all, along with the earlier mentioned commandment, Bible contains a number of other equally valid ‘commandments’, concerned with encouraging Christians to exterminate as many ‘unbelievers’ as possible. Yet, with the possible exception of few mentally abnormal Christian fanatics, most people who consider themselves Christians do not go about bashing ‘heathen’ children’s heads against the rock, as the ‘good book’ prescribes them to.¹¹ This is because, on subconscious level, they are being fully aware that this would represent a highly immoral act, on their part. Whatever was considered a fully appropriate behavior two thousands of years ago, cannot be considered an appropriate behavior today, as it is namely a continuous social, cultural and technological progress, which defines the qualitative nature of people’s moral predispositions, and not the vice versa. This is exactly the reason why; whereas, throughout the eighties (when there was no Internet), the legal provisions of CDPA used to make a perfectly good sense, this can no longer be the case nowadays, when more and more people grow utterly incapable of imaging their lives without Internet.

It is important to understand that it is in the very nature of technology’s ethical implications to remain one-step ahead of ethical implications of a conventional law. The reason for this is simple – technological progress does not only affect the surrounding reality and the manner of how people perceive this reality’s emanations, but it often results in the creation of a completely new reality, within which the provisions of a conventional law simply do not apply. Therefore, policy-makers’ strive to slow down the pace of technological progress, by the mean of making it a subject of an outdated law, cannot be referred to as anything but socially counter-productive.

The ideas that were articulated throughout this paper’s analytical part can be summarized as follows:

1. In its present form, 1988 CDPA does not serve the purpose of protecting one’s intellectual property from being unlawfully copied. All it does is protect the technologically backward method of information’s distribution, so that the concerned third parties may continue to enjoy the opportunity of making rather unjustified but substantial monetary profits. Such a situation, of course, cannot be referred to as being fully appropriate, in legal sense of this word.
2. P2P file sharing is a progressive method of information’s distribution, which is why in the very near future it will fully replace the method of manufacturing and distributing the copyrighted content’s ‘hard copies’. The sooner transnational media-corporations come to terms with this simple fact, the more likely they will be able to maintain their functional competitiveness.
3. P2P file-sharing results in undermining authors’ chances to be adequately compensated for creating a copyrighted informational content to a significantly lesser extent, as compared to how it undermines the chances of large media-corporations to be making extremely lucrative profits, as a result of holding a monopoly over the physical means of information’s distribution. Therefore, by indulging in what CDPA deems as ‘copyright infringing’ file-sharing, Internet users establish additional preconditions for the concept of ‘freedom of choice’ to continue to define the realities of today’s living. In its turn, people’s ability to practice their ‘freedom of choice’ is the foremost theoretical premise behind the concept of democracy.

I believe that these ideas are being fully consistent with paper’s initial thesis as to the fact that the exponential progress in the field of IT technologies, sublimated in the emergence of Internet, as an integral part of post-industrial living, exposes the conceptual inappropriateness of a number of CDPA’s legal provisions. Therefore, it does not make much of a sense to continue to refer to CDPA as such that provides an adequate legal framework for dealing with copyright-related matters. In the light of what the rise of the Internet had done to the world, a number of CDPA legal provisions appear hopelessly.

References

Baker, D 2009, ‘Free market myth: Regulation is everywhere. Let’s choose who benefits’, Boston Review, vol. 34, no. 1, pp. 7-9.

Bishop, J 2004, ‘Who are the pirates? The politics of piracy, poverty, and greed in a globalized music market’, Popular Music & Society, vol. 27, no. 1, pp. 101-106.

Easley, R 2005, ‘Ethical issues in the music industry response to innovation and piracy’, Journal of Business Ethics, vol. 62, no. 2, pp. 163-168.

Ginsburg, J 2001, ‘Copyright and control over new technologies of dissemination’, Columbia Law Review, vol. 101, no. 7, pp. 1613-1647.

Jones, L 1999, ‘Sacred violence: The dark side of God’, Journal of Beliefs & Values: Studies in Religion & Education, vol. 20, no. 2, pp. 184-199.

Kopp, S & Suter, T 1998, ‘Developments in copyright policy and network technologies: The first generation’, Journal of Public Policy & Marketing, vol. 17, no. 2, pp. 303-312.

Lai, S 1999, ‘Substantive issues of copyright protection in a networked environment’, Information & Communications Technology Law, vol. 8, no. 2, pp. 127-139.

Luckett, M 2010, ‘Toxic: The implosion of Britney Spears’s star image’, Velvet Light Trap: A Critical Journal of Film & Television, vol. 26, no. 65, pp. 39-41.

Porter, V 1989, ‘The Copyright Designs and Patents Act 1988: The triumph of expediency over principle’, Journal of Law and Society, vol. 16, no. 3, pp. 340-351.

Footnotes

• 1 D. Baker (2009), ‘Free market myth: Regulation is everywhere. Let’s choose who benefits’, Boston Review, vol. 34, no. 1, p. 7.
• 2 S. Lai, (1999), ‘Substantive issues of copyright protection in a networked environment’, Information & Communications Technology Law, vol. 8, no. 2, p. 133.
• 3 V. Porter, (1989), ‘The Copyright Designs and Patents Act 1988: The triumph of expediency over principle’, Journal of Law and Society, vol. 16, no. 3, p. 345.
• 4 J. Bishop, (2004), ‘Who are the pirates? The politics of piracy, poverty, and greed in a globalized music market’, Popular Music & Society, vol. 27, no. 1, p. 102.
• 5 S. Lai, op.cit., p. 138.
• 6 S. Kopp & T. Suter, (1998), ‘Developments in copyright policy and network technologies: The first generation’, Journal of Public Policy & Marketing, vol. 17, no. 2, p. 308.
• 7 D. Baker, op.cit., p. 7.
• 8 J. Ginsburg, (2001), ‘Copyright and control over new technologies of dissemination’, Columbia Law Review, vol. 101, no. 7, p. 1613.
• 9 M. Luckett, (2010), ‘Toxic: The implosion of Britney Spears’s star image’, Velvet Light Trap: A Critical Journal of Film & Television, vol. 26, no. 65, p. 40.
• 10 R. Easley, (2005), ‘Ethical issues in the music industry response to innovation and piracy’, Journal of Business Ethics, vol. 62, no. 2, p. 166.
• 11 L. Jones, (1999), ‘Sacred violence: The dark side of God’, Journal of Beliefs & Values: Studies in Religion & Education, vol. 20, no. 2, p. 185.