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In amongst all of the comments I’ve received recently in response to my dialogue with Paul Birch, there’s been a number of interesting points that deserve pulling out and discussing further. The first of these is from Paul himself.

In response to the recent New Music Strategies post An IFPI & BPI Board Member Writes, there have been a lot of insightful and interesting comments — many of which raise interesting side issues that I’d like to extract and examine more detail.

One commentator remarked that since he’s not allowed to duplicate his CDs for backup purposes, he’d like to know who was going to replace them if they got scratched. This is where Paul re-entered the conversation.

He writes:

In response to Mark I actually think there is nothing wrong with making a copy for your own use, in a sense side-loading to an iPod or similar is an extension of that use. Under current copyright legislation there is a need for customers to be allowed that facility but without it giving rise to them then making multiple copies for sale. The very specific instrument that allows the one and not the other is the difficulty in drafting any amendment.

To tease this out, Paul seems to be saying that while it should be legal to copy one’s own discs for personal use, it has to remain illegal. The reason, he suggests, is that nobody has yet thought of a way to make it possible without also breaking the bit that makes it illegal for the real pirates to mass produce and distribute CDs for profit.

Really?

Okay, leaving aside for a moment the fact that this is entirely back to front, it does raise the interesting point that there is a problem of terminology.

Copying is no longer the problem — so copyright should no longer be the solution.

In fact, with digital media, copying just happens.

When you looked at this page, you made several copies of it without even meaning to. There’s one at your Internet Service Provider and another in the Internet Cache folder of your hard drive (Copy my website, will you?! Where are my lawyers?).

Copying is a natural condition of digital media — and what’s more, it’s great that it happens.

It used to be that the best way to protect a work (by which I mean keep it from being permanently destroyed, rather than this new doublespeak meaning it seems to have these days) was to lock it away from view in a vault where it could not be damaged.

Nowadays, the single best way to protect a work is to make as many copies as possible and distribute them widely.

So many great works in the Library of Alexandria were destroyed by a single fire — lost forever to history — and yet I know that barring a worldwide cataclysm, my modest little e-book will always endure, because there are so many identical copies out there.

That strikes me as unfair and kind of sad. But that’s the difference between old and new media.

So copying is not the problem. Distribution, on the other hand, well that’s something else. It should, of course, still be illegal for criminals to set up mass replication outfits, run off a few thousand copies of the new Madonna album and flog them off for £2 down at the local market.

Profiteering off the works of others without their consent is still wrong. But the copying bit is not the problem. It’s the distributing for money bit.

Thinking about this reminded me of an article I read about five years back. It’s a nice piece by Ernest Miller and Joan Feigenbaum called Taking The Copy Out Of Copyright (PDF / WORD).

I recommend you read it. Although I’ve seen some interesting and often convincing critiques of the document, it is the piece that started me seriously thinking about copyright reform in the first place.

Lawrence Lessig might have fuelled the fire with his Free Culture book (do nothing else till you’ve read it) and the Creative Commons — but the thing that first convinced me that copyright should be completely scrapped and entirely redrafted from scratch is that article.

Thanks, Paul, for reminding me of it.