While the European Union’s General Data Protection Regulation (GDPR) safeguards an individual’s right to be digitally “forgotten,” what assurances exist regarding an individual’s—or a society’s—“right to be remembered?” A presentation at the International Telecommunications Society’s recent European Regional Conference held at Edinburgh Napier University in the United Kingdom raised this issue.
At the nub of the matter is the increasing reliance upon licensing and the increasing judicial exclusion of copyright exhaustion when it comes to creative works that exist only in digital form. Increasingly, digital content holders now ensure that only one legal copy of a work is ever held (by them), with its access strictly controlled through contracts. This overcomes the traditional problem of relying on copyright alone to protect holders’ interests. While copyright controls an individual’s right to make copies of the work (rather than a holder), licensing that governs a single copy usually contains strict provisions preventing content users from making or retaining legal copies. For example, Amazon restricts Kindle content access to approved devices and applications and removes access when the user ceases to maintain an account with Amazon.
On the one hand, digital licensing addresses the significant problem of “pirating” (the making of unauthorized copies) which threatens to undermine the economic case for creating and owning content in the first place. This is precisely the intention of the original copyright act, the 1710 United Kingdom Statute of Anne, which granted book publishers exclusive rights for 14 years, with a possible 14-year extension if the author was still alive. On the other hand, digital licensing, where only a single legal copy exists, precludes the sharing and resale of any copies—a feature of the analogue world that lawmakers fully appreciated when setting the lengths of copyright protections. The 14-year term recognizes that creators need time to make a fair return on their creation, accounting for sharing and second-hand selling, which satisfy demand for the work but do not compensate the copyright holder. The principle of copyright exhaustion—which recognizes that the copyright owner’s control of a copy “exhausts” on its first sale—enables legal sharing and resale to occur.
For the most part, courts have considered that copyright exhaustion does not apply to digital works. Hence, the rights holder controls all copies of a digital work, whereas for an analogue work (e.g. a book or photograph) they lose control once they make a copy. This leads to an important distinction in access and use once copyright expires or, more importantly, when digital rights holders no longer allows (or supports) access to the work (for example, removing works from an online catalogue, or ceasing trading with no arrangements for the works to be transferred to another owner). A copy of a physical work outside the original rights holder’s control cannot be affected by any decisions made by or fortunes of the rights holder, so can remain accessible to other (notably future) users. However, a digital work with no copies can disappear without a trace.
The potential disappearance of digital works has significant implications for future access. Often, creative works’ value goes unrecognized immediately. For example, researchers have derived much information about past societies from discovering items that might have had little value as creative works to their original controllers (e.g. diaries, ledgers, shopping lists) but take on greater meaning when combined with knowledge from other sources in the interim. If the vast majority of creative work becomes inaccessible because it ceases to return an income to (or be valued by) the only rights holder, it will never be available in the future for creating research or other derivative works. A future public good benefit (from creating research or derivative works) is lost because prioritizing sole rights holder’s private benefits in the present inhibits retention.
This suggests a strong case for the courts to reconsider whether their rulings on digital copyright exhaustion have pushed the balance of interests too far towards rights-holders, and that they should reset the balance with more regard to the public good, at least when legitimate copies of digital works are held for archival purposes. The future of rights users must be considered when deciding whether a work should be “remembered” —something that must also be considered by current rights holders when making decisions about who, and how, their digital content can be accessed and used.
The post The Right to be Remembered appeared first on American Enterprise Institute – AEI.
