Getting intellectual about property

By Brand Heeler

A few thoughts about the pro’s and con’s of digital formats

Maybe it’s a sign of getting old and boring, but we sometimes miss the old-fashioned analogue world. Everything seemed so simple. If you bought a book or some music, you only really had to worry about the physical medium, not the intangible content. You could give the book away, you could lend the LP to a friend. Ultimately you could pass them all on in your will (we inherited some great books from our dear departed grandmama, even if her collection of polka 78’s wasn’t much to our taste).

Of course, there were still limits to what you were and weren’t allowed to do, but these were by and large commonsense rules and were mainly covered by physical constraints. You weren’t allowed to photocopy your copy of Great Gatsby or write it out in manuscript, but that was never really going to be an option. And if you needed to apply for permission to recite it in public or adapt it for the stage, that wasn’t an insuperable hurdle either. It was the same with vinyl. OK, it was technically possible to copy an album to tape, but the steep loss of quality soon limited the appeal to anyone other than schoolkids. We don’t think hometaping ever finally killed music as threatened – it may even have helped it along by giving kids the chance to check out the goods before spending their pocket money on the real thing.

Modern entertainment seems so fraught by comparison. The law hasn’t changed, well not since 1988. And content is content is content (even if everyone says it’s not as good as it used to be). But media has gone digital and this has had huge repercussions: it’s now technically and commercially trivial to run off endless identical copies, with no loss of quality. That’s scuppered the big corporates, certainly for the time being, and has led to a general disinclination among younger generations to pay for anything at all. And what do you even get for your money? What do you get when you download What Do You Get? More and more, it’s only a personal licence to use, and comes with none of the ‘transmissibility’ we’re used to with old-fashioned physical media.

It’s not a big issue yet, because even early adopters of digital music are still relatively hale and hearty, but can you bequeath your MP3s? You may have seen the rumour earlier this summer about Bruce Willis and his daughters (does that make it a Rumer rumour?) and how he was getting stroppy about not being able to leave them his digital music collection in his will. Turned out it was one of those silly-season made-up jobs, but the point stands. How can you ensure your descendants get to enjoy The Return of Bruno in the same way you did? What if your licence for your music terminates on your death? What if your grieving family can’t find the password for the little slice of the cloud which stands as a monument to your artistic sensibilities? Kindle’s t&c’s don’t seem to allow for testamentary disposition. Nor do iTunes’. And there has already been litigation in the USA (where else?) over a family’s right to access a dead son’s Facebook page.

As things stand, someone somewhere may well be within their rights to wipe your Kindle and close your account the minute you turn up your toes. Same goes for your music, and your photos, and your blog entries. No doubt it’s one of those things that will sort itself out in time – the EU or US will probably impose a solution on the rest of us. But in the meantime, possession is 9/10ths of the law, and it’s best to keep your digital stuff where you can see it. In a nice physical form. Bit like a book. Or a CD. Plus ça change…

This article contains our thoughts and opinions on an issue of general interest and is written from the perspective of Australian and/or English law. It is not legal advice and is not provided in the context of a solicitor-client relationship. It may not even be relevant to your jurisdiction. No duty of care is assumed or accepted. Please carry out appropriate research and consult with a suitably qualified legal expert before taking any action or making any decisions.