Copyright Dark Forces

Posted on Jun 24, 2021

Copyright Dark Forces

Copyright is a system which grants creatives (i.e. writers, artists, composers, film makers, record producers and the like) certain exclusive rights to their works which enable those works to be commercially exploited for financial reward. Creatives are thus empowered to make a living out of their works, which in turn is an incentive to make more and better works. In general, the modus operandi is for copyright owners to grant licences for the use of their works, subject to the payment of royalties. They have complete freedom and flexibility regarding the nature and content of the licences.

This system has been in place for centuries. The Berne Convention, the figurative twelve tables of copyright law, which regulates the content of copyright law and its international application, dates from 1886. The system works well and has played a significant role in the development of the arts and sciences over the years. Many creatives have accumulated wealth from the system, while at the same time enriching the arts and sciences to the benefit of the public at large.


In recent times copyright has come under attack. It is seen by some as placing unwarranted restrictions on the dissemination of knowledge and information, and to be restrictive of development. This school of thought holds that the public interest is best served by removing most, if not all, restrictions on free use of works and in particular doing away with the element of payment for the privilege. Copyright is perceived by them to be an oppressive evil which is best debilitated or even eradicated. Those who actively seek the debilitation of copyright can be considered to be the copyright dark forces.

The copyright dark forces are made up of essentially two groups of people. The first are mainly idealists who honestly subjectively believe that copyright is prejudicial to modern society and are guided by this principle. Ivory tower academics are a significant component of this group. The second group are business people whose selfish commercial interests will be furthered by the ability to indulge in wholesale unauthorised copying of works with impunity. Large international on-line businesses which rely on having vast libraries of works which can be accessed freely by the public are prominent members of this group. Although they are very different in their make-ups and ideologies, the two groups have the same objective, which makes them allies of a sort, and they can be tarred with the same brush.

Amongst those who tend to be antagonistic towards the copyright system are movements or organisations such as Open Source (which propagates free public access to works), Copyleft (which advocates the right to freely distribute and modify works), and Creative Commons (which has as its goal helping to overcome the legal problems to the sharing of knowledge and creativity). These bodies are actively eroding authors’ exclusive rights arising from copyright. They harbour in their midsts members of the copyright dark forces.


One of the chief weapons of the copyright dark forces is the promotion of widespread exceptions to copyright. Exceptions have been made to copyright since the days of yore. The Berne Convention provides for them, subject to conditions, namely that they should only be granted in certain exceptional cases that are not in conflict with the normal exploitation of a work and which are not unreasonably prejudicial to the copyright owner. These conditions are known as the ‘Three Step Test’. These exceptions in moderation balance the interests of copyright owners with those of the public who reasonably require free use of works in certain circumstances. However, the copyright dark forces see exceptions as an excellent means of achieving their objective and pursue them in excess.  When the exception becomes the rule, copyright is rendered nugatory.


In seeking the demise of copyright, how should one go about it? The system is far too firmly entrenched internationally to launch a frontal attack on it.  The prospects of success of this approach would be minimal.  The better approach would be to attack it from within – to feed it a slow poison or infect it with a virus that will progressively destroy it. One could do this relatively unobtrusively while even creating the façade of supporting it. Duplicity in public life is not unknown. As we know only too well, a virus can act invisibly and can effectively kill the host stealthily. Implanting excessive debilitating exceptions in copyright legislation would act very effectively as a fatal virus leading to the demise of the system.


The Copyright Amendment Bill seeks to implant excessive exceptions, which do not comply with the Three Step Test, in the Copyright Act. The introduction of these exceptions is applauded by the copyright dark forces. The crucial question is whether the Department of Trade and Industry (DTI) and the Parliamentary Trade and Industry Portfolio Committee, the authors and sponsors – the patrons – of the Bill, are innocent parties caught up in the process of infecting the Copyright Act with the exceptional virus, or are they active, knowing participants?

There is no doubt that elements of the copyright dark forces have consulted with the patrons in the drafting of the Bill and egged them on. The patrons have also sought the counsel of such persons when dealing with the justified criticism of the Bill. Conversely, the patrons have paid scant regard to the opinions and representations of what might be termed the copyright purists, namely those who seek to uphold the ideals of the copyright system. Have the patrons been duped by the duplicitous conduct of ostensibly well-meaning members of the copyright dark forces, and thus been misguided in their adoption of excessive exceptions, or are they the accomplices and fellow travelers of the virus carriers? Have they perhaps been captured by big business? What are the true intentions and attitudes of the patrons towards copyright? These are questions on which informed opinion has differing views.

What is certain, however, is that, in introducing excessive exceptions into our copyright law by means of the Copyright Amendment Bill, the patrons are advancing the aims and objectives of the copyright dark forces. In the interests of preserving the integrity of our copyright law this process must be aborted.

Owen Dean