Copyright For The Digital Age

Why every employee in your company is breaking the law every day and what can be done about it

An important concern for any company is to ensure that their employees are not breaking the law in their work. That includes laws that are industry-specific, as well as ones that apply to every company. Among the latter, a problem that has risen to prominence in recent years is copyright infringement.

A few decades ago, it was difficult for employees to infringe on copyright because it was hard for ordinary people to make copies of physical objects like books. Photocopiers could be used to make copies of a few pages of a book, or of drawings, but they were generally of poor quality, and certainly no substitute for the original.

Today, we live in a world of digital documents, books, photographs, recordings and videos. One of the defining qualities of digital files is that it is easy to produce perfect copies of them for almost no cost, using a computer or a smartphone. Moreover, the rise of the Internet means that most people in Western societies have a quick way to share those digital copies around the world. In many cases, that will represent an infringement of copyright, since the owner of the copyright rarely allows copies to be made and shared freely in this way.

The problem was recognized some time ago. In 2007, John Tehranian, a professor at Southwestern Law School in Los Angeles, calculated that a typical Internet user would be liable for $4.544 billion in potential damages each year as a result of normal Internet use. If anything, the situation today is far worse. Back in 2007, there was no Instagram or TikTok; Twitter had only just been launched, and even Facebook had fewer than 100 million users. Now, most people online use one or more of these social media services many times every day. 

The urge to post online – comments, pictures, videos, songs – is now so reflexive that most people are unaware of it: it is simply part of their everyday lives. Equally, most people do not think about whether they have the legal right to post the material they send to family, friends, colleagues and strangers. They probably assume that it's fine because there is no money involved. But the history of digital copyright over the last 30 years shows that companies believe that any unauthorized copying is unacceptable, whether or not it is done for profit. 

The ubiquitous culture of digital sharing is a serious problem for companies because it is not restricted to external social networks. The urge to pass on interesting or amusing emails, images, videos, and articles to colleagues over internal company networks is too strong despite strict bans on doing so. The net result is that the potential damages for such actions are probably even higher than the eye-watering $4.544 billion in 2007.

Policing such bans is problematic. Even judges and lawyers find it hard to distinguish between material that can be lawfully shared, perhaps as a matter of fair use, and things that cannot. That means it is even harder to encode those subtleties in algorithms that could be used to keep a watch on the files that employees share. If a company implemented a network filter system to prevent copyright infringement by its employees, the risk is that legitimate material would be blocked, with possibly serious negative consequences for a business's operation.

Stopping people sharing copyright material is a hopeless task because of the clash between copyright and the Internet. Copyright was devised in 1710 with the Statute of Anne. It was designed for an analog world where copying was hard, and required specialized equipment like a printing press, that was easy to find and impound. The Internet is, at heart, a digital copying machine. It works by making multiple copies of files and sending them around the globe across interconnected networks. The computers and smartphones that people routinely use to copy files cannot be simply confiscated because modern business – and society – depends upon them. 

Faced with that challenge, the copyright world has lobbied for and obtained ever-harsher copyright laws aimed at discouraging people from making unauthorized copies of digital material. The fact that the industry has come back many times for yet more serious deterrents proves that no matter how stringent, the laws against digital sharing simply do not work.

The way to address this problem – and the consequence could be huge if companies ignore the risk of being sued for the illegal actions of their employees – is to make copyright fit for the digital age. At the very least, that would entail recognizing that everyone, everywhere, is sharing digital material without permission, and adjusting the law accordingly. Ideally, it would involve a complete re-imagining of copyright – perhaps even its abolition. 

The resistance from the copyright world would, naturally, be immense. But maybe it is time for the business world to demand saner laws in this area, rather than just carry on turning a blind eye to this massive and pervasive law-breaking committed by every employee, every day.

Glyn Moody has been writing about copyright, digital rights, and the Internet for 30 years. He is the Editor of the Walled Culture project and author of the new book ‘Walled Culture: How Big Content Uses Technology and the Law to Lock Down Culture and Keep Creators Poor’.  Visit https://walledculture.org/