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MORPH: Governing for a piece of mind

MORPH: Governing for a piece of mind

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Software piracy, and the legitimacy of proprietary software development is enough to spark a heated debate in the boardrooms of IT companies from Buenos Aires to Bombay. Taken in isolation the contemporary debate quickly becomes fairly meaningless, with each side asserting that its views are the fairest from an economic, social or political point of view.

However, the debate surrounding intellectual property rights is not new, even though its focus has shifted over the centuries according to the relative power of groups with a vested interest in the creation, reproduction and distribution of innovation.

In roughly 51 BC, Quintus Horatius Flaccus, more commonly known as Horace, is thought to have said that poverty drove him to write. It seems then that the same invisible hand that all but deters poets in post-industrial Australia went so far as to encourage them in Ancient Rome. Financially, Horace made the right decision. Within a decade or so his literary successes afforded him a series of villas and earned him a literary reputation which has managed to survive albeit in the classics departments of universities for a couple of millennia.

Having made a name for himself on the Roman literary scene, he felt suddenly empowered to launch a savage attack on fellow poet and playwright Plautus for the irresponsible promotion of his works. "He wishes," Horace levied, "to get money into his purse, and then he is indifferent to the failure or success of his play."

When it comes to the rights and obligations of the author, a lot has changed in the last 2000 years. The success or failure of a software solution, for instance, generally has more to do with the company charged with implementing the solution than the company that created the software in the first place. The onus of profit creation has shifted very definitely from the shoulders of the author to the implementer and end user. And the differences don't end there.

Copyright laws essentially govern the economic and intellectual ramifications of the transfer of information. They specify who gets paid what for the creation, reproduction and sale of a text, whether it is a novel, a song, a cartoon, a photo or a program which teaches you typing skills. They also specify who can legally access the information contained in texts, and the code written into computer programs.

Such laws, however, are economic -not moral - imperatives, and their implementation remains at the discretion of each government at a national level. In the early 1790s, the government of the United States decided the recognition of the rights of foreign authors was not in its economic interests, and introduced copyright protection only to its own authors. US-based publishers had a field day with vast print runs of the European classics, much to the consternation of their trans-Atlantic counterparts.

In theory, intellectual property rights are established in such a way that the printing and sale of a book/song/photo is economically viable to the publisher, author and retailer. The latter gets a slice of the action to pay for its shopfront; the publisher gets a kickback commensurate with the risk associated with their investment in the publication and promotion of the text; and the author gets a percentage which is largely dependent on their previous successes.

Piracy is tolerated in proportion to the threat it poses to the financial viability of this operation. While making copies of a certain CD and selling them down at the markets on the weekend can land you in jail, burning a few for friends is largely overlooked and copying a rift of chords, or stealing the odd metaphor, is fairly standard practice.

The laws of copyright pertaining to the use and reproduction of software have borrowed heavily from the laws pertaining to the reproduction and use of literary and later musical creation. In European history these laws hark back to ancient Greece and possibly even ancient Egypt, where the priesthood reserved the right to strangle the life out of anyone found copying its sacred rituals without explicit permission. During the Middle Ages, monasteries became the depositories for learning and knowledge, and held sway over any reproduction of texts by virtue of locking them up in tremendous libraries. This practice enabled them to make a bit of money on the side, renting them out to errant copiers who made their living from the painfully slow spread of information. In essence, however, they were precursors to modern day media moguls.

It wasn't until the 1463 invention of the printing press that copyright became a major point of contention, and even then it wasn't the authors of the texts, but the publishers who were primed for a stoush. The printing "privileges" handed out to specific printers were essentially designed to regulate the literary trade; authorisation to print a text was obtained from the Crown, not from the author. In fact, the only cases in which the author managed to copyright their own text were those where a book's reproduction did not seem economically viable.

By the middle of the sixteenth century a powerful lobby group, not unlike the modern day Business Software Association of Australia (BSAA), had formed. Comprised of publishers, bookbinders and book sellers, the Stationers' Company regulated the trade of copyright, and therefore the trade of literature. It maintained a mutually beneficial relationship with the government of the day, with the crown enforcing the copyrights, and the Stationers Company enforcing the Crown's censorship requirements among its members.

This just goes to show that behind every high powered lobby group is a highly lucrative industry, prepared to defend and promote any legislation which enables its future earning capacity.

The rights of the author have become a very powerful, and largely emotive, catch cry of some in the software industry, which we are repeatedly told has the right to protect its intellectual property from the evils of piracy.

However, a best selling novel and a best selling program are vastly different beasts. When was the last time you opened up a piece of software and admired the elegance of the code, or became entranced by the way a data bottleneck was solved through innovative process analysis?

A program is not a song or a play, and programmers are for the most part salaried staff, or even casual employees contracted to provide small chunks of an overall solution - not tortured artists kept on the breadline by teenagers with high-speed dubbing.

Software is a tool, not an artistic

creation. Like mathematics or theoretical physics, the beauty and elegance of its internal architecture is not readily appreciated by those outside the

profession.

Thanks to reverse assembly clauses, licensed software is also a tool which the consumer is not allowed to fully control. Imagine buying a shovel which could never be sharpened without endangering your legal ownership.

Ideally copyright laws serve to remunerate the artist, ensure the financial viability of ongoing production, and allow the society that enabled the creation access to the benefits of that creation. In the case of software, this may require lawmakers to significantly review their understanding of the nature of the IT industry and its role within the economy.


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