America did not grant international copyright until 1891. As a result, for most of the nineteenth century, foreign works could be published in America, freely and quite legally, without permission or payment. Given the immense size of the market at stake, it is small wonder that foreign authors and publishers protested. Dickens' notorious intervention in the campaign for international copyright is often presented as if it offered a synoptic view of a pitched battle between two sides; with the righteous British on one side of the Atlantic, and the piratical Americans on the other. Such an image offers a dangerously unfair and one-sided portrait. The true picture alters significantly during the nineteenth century. In particular, possession of the moral high ground does not rest unfailingly with the British. Both sides merit the ‘pirate’ badge, in different degrees at different times.

America began the nineteenth century as a very young nation, as yet uncertain where independence from Britain would lead. Britain, similarly, had to come to terms with significant political changes affecting its sense of nationhood, and its relationships with other nations. The influence of these wide questions can be seen in the debates regarding copyright. International copyright (or its absence) came to be perceived and portrayed as linked to a nation's sense of identity and moral standing.

Introduction: the law-and-economics of copyright

Anne Barron's chapter offers a provocative and insightful discussion of the law-and-economics (L&E) perspective on copyright law. Although I am an economist, I largely share her views on the limits of L&E analysis in this field. I also share her concerns about the expansionist tendencies of some contemporary copyright regimes. Therefore I see my main role in what follows as attempting to elaborate and extend her critique, particularly of the so-called ‘absolute protection paradigm’. However, in the nature of a scholarly commentary, I begin by noting two points of disagreement, even though they are of minor importance compared to our shared concerns about L&E as an engine of copyright expansionism.

Although L&E analysis of copyright is problematic, Barron wrongly assumes her objections extend to economics more generally, and therefore concludes that Frischmann and Lemley's critique of the absolute protection paradigm fails. She complains about their ‘lingering adherence’ to economic theory, and seems to imply Frischmann goes astray because ‘he stops short of a wholesale rejection of economic theory’. What kind of economic theory does Barron have in mind for wholesale rejection? Barron only goes into details in a passage outlining a ‘vision of the social order … that animates economic theory’. Her summary of mainstream neoclassical economics is accurate, although many contemporary economists do not share this perspective. But even among those who do, few would recognize the normative status Barron attributes to economic theory.

In French copyright law, contrefaçon consists of the infringement of any of the author's rights. As the only basis for a remedy for the violation of French droit d'auteur, contrefaçon originally lacked a broad scope. The expansion of contrefaçon is a relatively recent development, which is now being challenged by offences committed by the general public.

In the past, the general public associated contrefaçon exclusively with the sale of counterfeit goods of luxury brands. The media regularly echoed this narrow interpretation. It is only recently that the contrefaçon of works of authorship has been in the media spotlight. The general public has grown increasingly aware that downloading movies or songs without authorization is illegal. In 2006, a large part of French public opinion demanded the freedom to download, in other words, the end of contrefaçon on the Internet – at least as applied to non-commercial users. In summary, because the public understands contrefaçon to entail the penalty of either a monetary fine or the threat of imprisonment, public opinion considers actions for contrefaçon to impede free access to culture and to marginalize young people. The concept of contrefaçon is clearly undergoing an unprecedented crisis of legitimacy. This phenomenon however appears specific to droit d'auteur. In contrast, the sanctions associated with trade mark and patent infringements are not being challenged; in fact the European Union does not hesitate to describe these infringements as a kind of international organized crime.

Since 1960 a highly innovative form of music making has developed in Jamaica in the effective absence of copyright. Over the first two-thirds of the chapter I argue that in fact reggae music would never have emerged had copyright been implemented on the island. Quite simply, local forms of creativity and the nature of the musical labour process were inimical to intellectual property (IP). In the last section, I go a step further by suggesting there are wider lessons to be learned here. Creative practice in Jamaica has been based on principles which may well apply in other territories and to other forms of culture choked by the constrictions of the contemporary copyright regime. A comparison with open-source software reinforces this case.

On Orange street: political economy at the birth of reggae

In 1960 the music industry in Kingston, Jamaica was still at an embryonic stage. The main form of music entertainment, however, was distinctly modern. Across the city black working-class people danced to recorded music. This was provided by mobile sound systems, consisting of a record deck, amplifier and large loudspeaker boxes, together with operating crew and truck to carry the equipment. The sound systems constituted a highly competitive market, where what counted was the playing of new and exclusive rhythm and blues records from the US. Audiences provided immediate feedback in the form of getting up to dance – or not – and the fortunes of a sound depended on its ability to keep audiences moving.

The idea of originality has long engaged the attention of literary scholars. It also attracts the scrutiny of lawyers through its central role in copyright law. Consequently, it provides fertile ground for interdisciplinary study and significant and influential work has been done in this area by Martha Woodmansee, Peter Jaszi and Mark Rose. This work links the emergence of the proprietary model of authorship with the construction of Romantic authorship, the link being forged in the fire of the literary property debates which culminated in the cases of Millar v. Taylor and Donaldson v. Becket. The focus of such work is thus on the similarities to be found in the fields of law and literature in this period, the shared rhetoric and the players found in both camps. But concentrating attention on the cases relating to the question of common law copyright and the debates they engendered has obscured the fact that the courts were also required to deal with other disputes relating to the printing and selling of books in this period and, in such cases, aesthetic theories of creative originality were distinctly absent.

Nick Groom in his contribution to this volume (Chapter 14) seeks to reposition the concept of originality by viewing it as a response to plagiarism, itself acquiring a new significance when the rise of professional authorship meant it posed a threat to authorial earnings.

Copyright infringement has been high on the national, regional and international political agenda for some time. The creative industries – publishers, the film and music industries and broadcasters – have lobbied hard for improved mechanisms of enforcement and stronger penalties in the face of what they describe as rampant ‘piracy’ of their products. The UK government increased criminal penalties for copyright infringement in 2002 from a maximum of two years' imprisonment to a maximum of ten years, putting copyright infringement on a par with assault and other violent crimes. The French government in 2009 introduced a mechanism (dubbed ‘graduated response’) that would oblige Internet service providers (ISPs) to cut off (or reduce) Internet access for users implicated in peer-to-peer file sharing. This initiative has been imitated in the UK, where the Digital Economy Act 2010 provides a framework for imposing similar obligations on ISPs to impose ‘technical restrictions’ on the services offered to subscribers who appear to have been involved in repeated copyright infringements. In 2007, the US launched an action at the WTO, complaining that China had not complied with the TRIPs Agreement because the relevant Chinese laws set certain thresholds for prosecution of copyright piracy. New initiatives are being discussed in the EU, the US, Japan, Australia and several other nations for an ‘Anti-Counterfeiting Trade Agreement’.

Although the question of copyright infringement has gained a great deal of political attention and is unquestionably controversial, academics have generally attended more to other questions, particularly, ‘authorship’.

Introduction

The activity of text reuse describes the situation in which pre-existing written material is consciously used again during the creation of a new text or version. This might include the reuse of an entire document (e.g. in the case of duplicate web pages), or smaller segments (e.g. chunks, paragraphs and sentences) from one or more existing texts. From the author's perspective, the process of reuse involves ‘finding the relevant material, modifying it as needed and stitching the pieces together’. This may involve a process of text rewriting (or editing), with the author reusing existing material with (or without) permission from the owner. From the reader's perspective, text reuse can be cast as a problem of text analysis or attribution: given two texts is it possible to determine, within an acceptable degree of probability, whether one text is derived from the other? Identifying text reuse can be difficult due to the degree of textual transformation that can occur, from simple cut-and-paste reuse to more complex cases involving paraphrasing and summarisation making the revised version appear very different to the original text. One might add to this that recent advances in technology are also making the activity of text reuse easier. For example, the search engine Google indexes and makes easily accessible billions of web pages on a diverse range of topics and in many different languages. Being able to discover such documents may promote their use as a basis for new texts.

Jason Toynbee asserts that reggae music would never have emerged had ‘copyright proper’ been enforced in relation to the commercial exploitation of music in Jamaica.

Our starting point is the Imperial Copyright Act of 1911 (‘the 1911 Act’) which applied to colonies of the UK and was adopted in Jamaica in 1913. A brief background to the 1911 Act in relation to the exploitation of music in the UK will serve to put that Act in context.

In the UK, in the nineteenth and early twentieth centuries, music publishing was an industry of small family businesses whose revenue centred on the sale of sheet music. Sheet music and live performances were the predominant mode of dissemination of music. At this time, music publishers ‘showed little enthusiasm for the bothersome, costly, unfamiliar, and unpopular business of collecting fees for performances’. In the late nineteenth century, the recording industry was in its infancy and its business was based upon the mechanical reproduction of music. Music publishers challenged this practice in a test case, and Stirling J. held that the unauthorised reproduction of musical works by mechanical instruments was not an infringement of copyright. The subsequent boom in the recording industry, combined with sheet music piracy, left music publishers experiencing a serious downturn in sales of sheet music, which music publishers sought to redress by collecting fees for public performance of music which led to the establishment in 1914 of the Performing Right Society (PRS).

Loraine Gelsthorpe in her contribution to this volume (Chapter 20) explores copyright infringement on the Internet as ‘a new crime of the twenty-first century’. She notes the pervasiveness of the phenomenon, and seeks to apply theories of criminology to explain what motivates it. She concludes that conventional criminological theories cannot provide a satisfactory explanation for the phenomenon, which she characterises as a ‘grey area crime’, one marked by moral ambiguity. Instead, she turns to the insights to be drawn from analyses of the impact of late modernity, or the social transformations that have taken place since the 1950s.

In her view, the normative compliance that ideally provides reasons to obey the law (based on the acceptance of social norms, social bonds or the legitimacy of authority), has been weakened in the UK and elsewhere in the last fifty years. She sees an increased moral individualism and relativism, and the ‘democratization of social and cultural life’, or a decline of deference. As a result, authority figures today must work harder to achieve legitimacy. In addition, the emergence of a ‘risk society’ in late modernity has led to an environment where tradition is replaced by a pluralism of expertise, and the emergence of a rights-based culture where the dominant values are choice and individual rights. She describes as a key component of contemporary morality a strong focus on ‘the victim’ – and the problem is that there may be little sympathy for the victim here, perceived as rich multinational corporations.

Introduction

This chapter explores copyright infringement via Internet piracy as a new ‘crime’ of the twenty-first century, it outlines some of the limitations of traditional criminological theorizing about the causes of crime, and suggests that this new ‘crime’ has to be seen in the context of late modernity. Late modernity has brought with it new technology and a whole host of social transitions which perhaps blur conventional moralities, thus making Internet piracy much less of a ‘crime’ (in some people's eyes) than it would hitherto have been seen.

As David Wall and others have suggested, the introduction and extension of the Internet represents a seismic shift in social life. Criminologists have perhaps been slow to recognize that new forms of computer-mediated communication may be contemporary vehicles for criminality. Moreover, where there has been interest, the critical gaze of criminologists and socio-legalists has generally been directed towards the creation of hyper-criminal networks, fraud (including ‘phishing’), the dissemination of hate-related propaganda, stolen identities, cyber stalking and the extension of paedophile networks, with the latter tending to dominate media interest. Wall has suggested that there are now three generations of cybercrime: first, traditional or ordinary crimes using computers, second, hybrid cybercrimes whereby computer technology has created entirely new global opportunities, and third, true cybercrimes which are solely the product of the Internet. I am concerned with the second and third category of crimes, and I take music piracy as my prime example of copyright infringement in this chapter.

‘Viva La Vida’, released on 7 May 2008, was the band Coldplay's first single to top both the UK Singles Chart and the US Billboard Hot 100, and it was subsequently nominated for a Grammy award; it was also allegedly stolen from an obscure Brooklyn-based group called Creaky Boards. Their version, entitled with presumably unwitting irony ‘The Songs I Didn't Write’, had been written a year before. Creaky Boards argued their case on YouTube and achieved overnight fame, before retracting the allegation and claiming that both songs shared a common source in a video game, ‘The Legend of Zelda’.

Then, on 4 December 2008 guitarist Joe Satriani stepped up to the plate and accused Coldplay of plagiarizing ‘Viva La Vida’ from one of his songs, ‘If I Could Fly’ (2004). Fifty seconds into ‘If I Could Fly’ Satriani plays a melody line which does seem to be remarkably similar to/have inspired/been plagiarized for the refrain of the Coldplay hit. He sought ‘any and all profits’ from ‘Viva La Vida’. And at the same time, Yusuf Islam (formerly Cat Stevens) also identified similarities with his ‘Foreigner Suite’ (1973). Yusuf's allegation was dropped (‘I don't think they did it on purpose’, he told the Sun, ‘I'd love to sit down and have a cup of tea with them and let them know it's ok’), but Satriani's case went to court in Los Angeles.