Article by Ali Pirhayati: “Solutions for the Problem of Illegal Downloading”

Introduction

In recent years, the issue of illegal downloading has become a serious problem in various countries. This issue seems to be much more acute in Iran, especially since Iran is not a member of international copyright treaties and most translated books officially published in Iran already involve the violation of foreign authors' rights. In any case, a comprehensive and effective policy for solving this dilemma has not been devised.

Undoubtedly, a prerequisite for formulating such a policy is the articulation of the theoretical and ethical foundations of copyright and determining how to strike a balance between respecting the rights of creators and the free flow of information. Various works have been written on how to establish this balance, and of course, the majority of efforts in this field are in favor of the free flow of information and the promotion of awareness among the general public, such that several movements, including the anti-copyright movement (Anti-copyright) and the copyleft movement (Copyleft), have been formed in this direction.

It should be noted that in the discussion about copyright, we must distinguish between three situations: first, an individual publishes another person's work under their own name. Second, an individual reproduces a work in which they played no role in producing and derives commercial profit from it, and third, an individual reproduces (or downloads) a work for personal use. All three situations are considered in copyright laws and related discussions. In the present article, only the third situation is our subject of discussion. The first and second situations are clearly unethical, and of course, if the status of the third situation is clarified, the second situation will be almost eliminated. In this article, we first refer to the history and the legal and ethical aspects of copyright, and then discuss possible methods for solving this dilemma.

The History and Theoretical Foundations of Copyright

In general, before the invention of the printing press and especially until the early eighteenth century, the issue of copyright was fundamentally non-existent, because on the one hand, the possibility of mass reproduction of literary and artistic works was not available, and scientific and literary plagiarism (at least on a widespread scale) did not exist; on the other hand, the individualism of the modern era had not taken shape, and every work was considered the product of a collective culture. Furthermore, given the difficulty of travel and the negligible volume of human works, any kind of access to these works, in any form, was considered an absolute advantage and desirability.

With the invention of the printing press and especially after the Industrial Revolution, with the formation of the publishing industry and the emergence of new forms of producing reproducible works such as film and photography, etc., the concept of copyright took shape and entered into law and legislation. Two issues, particularly in recent decades, have caused copyright to become a serious dilemma. Firstly, due to technological advancements, the possibility of reproducing various works on a large scale with low cost and high speed became available, and secondly, the number of individuals who rely in various ways on income from the reproduction of reproducible products (including authors, producers, photographers, journalists, publishers, bookbinders, sellers, etc.) increased.

Thus, over time, a kind of contradiction emerged in the legal and ethical domain and, consequently, in the realm of cultural policies. Ethically, public access to art and information is desirable, yet on the other hand, certain types of access are contrary to the law and seemingly unethical—an ethical issue that, as we said, had not fundamentally been raised before recent decades (and in underdeveloped countries, its history is even shorter). In the policy domain, on the one hand, billions of dollars are spent annually on establishing and managing libraries so that individuals in the farthest corners of the world can access various works, and on the other hand, governments have been obliged to devise mechanisms to restrict public access to the products we mentioned (especially digital works).

Andrew Forshaymes, in an article, addressed the ethical aspects of this contradiction and believes that any argument in favor of the existence of physical libraries is an argument in favor of illegally downloading books from the internet, and any argument against illegal downloading is also an argument against libraries (1) because libraries themselves, in a way, violate copyright and cause fewer people to buy the book. Also, note that libraries do not distinguish between rich and poor users and are obliged to provide their services to the general public. In other words, it is not the case that libraries only cover individuals who lack the means to access works; rather, the largest libraries are established in the most developed and wealthiest urban areas. This situation shows that, according to our mental presuppositions, the elevation of individuals' awareness and the promotion of knowledge are so important that the absence of a library is always considered a sign of weak government policies and public deprivation. According to Forshaymes' argument, if we believe that internet access reduces the sales of works and is therefore impermissible, we must logically believe that building physical libraries is also ethically impermissible.

If it is argued that libraries, under normal circumstances, cannot hinder the sales of works to the same extent as internet downloading, the logical conclusion of such an argument is that building very efficient libraries that, like internet downloading, reduce the sales of cultural products is also unethical, and this conclusion seems strange.

Consider this thought experiment: Suppose we have a library of which all the residents of a city of several million are members. This library is very well-equipped and uses small unmanned aerial vehicles (drones) to deliver books to patrons, so that access to a book becomes possible just a few minutes after a request, and once the patron is finished with the book, it is immediately returned to the library shelf. In this way, the library can cover this city of millions with only fifty copies of each book, because no more than fifty people ever request to read the book simultaneously (at a specific time during the day). Therefore, no one in this city needs to buy any book, because any book they request reaches them within a few minutes, and even textbooks can be made available to them whenever students or pupils need them. Thus, a book that was supposed to have a print run of at least several thousand copies will only have a print run of fifty copies, which are placed at the library's disposal, and consequently, no profit accrues to the author, publisher, etc. Now, considering that this library has a situation exactly like downloading a book from the internet, is the establishment of such a library ethically permissible?

Salmer Bringsjord believes that since some forms of reproduction are morally permissible and no logical distinction can be drawn between these forms and others, all types of reproduction (for non-commercial purposes) are therefore permissible.(2) Ronan Deazley, in his book, has also dealt extensively with the various legal aspects of this contradiction.(3) Meanwhile, in recent years, a large number of internet sites have emerged that make books and articles available to the public in violation of laws, and even have a section for charitable donations. Blocking these sites has also been ineffective, as new sites with the same content are immediately established.

In light of these discussions, the most important issue is formulating a policy that can take into account both the free flow of information and the observance of creators' rights. We will now address several potential solutions aimed at creating such a balance. It should be noted that in these solutions, we particularly emphasize solving the problem of access to books and printed works, to which the copyright issue is mainly related. Another point is that in examining these solutions, one must consider that with the current situation, there is, so to speak, "nothing left to lose"; that is, despite governments' efforts to combat illegal download sites, the number and scope of these sites are increasing worldwide day by day, and this trend can no longer be stopped, so solutions other than confronting these sites must be considered.

Solutions

1. It seems that most people, if they have access to the digital version of works via the internet, no longer need their physical versions. If this hypothesis is incorrect, then the possibility of downloading from the internet does not significantly affect the reduction of creators' profits; but if this hypothesis is correct, the cost spent in libraries on providing individuals access to physical versions of products is no longer justified. In other words, when fast, easy, and low-cost access to cultural products can be provided to individuals via the internet, why should enormous sums be spent on establishing and managing libraries? Therefore, a mechanism must be created so that the same funds spent on libraries (including costs for premises, staff, commuting, etc.) are given to creators, and in return, cultural products are made available to the public for free (or at a minimal cost) through the internet.(4) Implementing this policy, of course, requires surveys and case-by-case examination of books, meaning it must be determined which products, if provided to individuals solely in electronic form, would eliminate the need for their physical version. For example, almost all reference books do not need to be printed if electronic access to them is available.

2. As we know, a large percentage of books do not sell and gather dust in the corners of warehouses or public and university libraries, while the cost of maintaining them continues to be paid. Making the printing of paper books order-based or Print on demand (Print on demand) can help solve this problem. This solution finds meaning in continuation of the first solution; that is, if books are made available to the public digitally, then the exact extent of the need for physical books will be determined, and thus we will witness a significant reduction in the cost of paper, printing, binding, and book transportation. Currently, most newspapers in the country have such a situation, where the entire text of the newspaper is accessible for free on the internet, while a specific number of print copies are also published.

3. Most people spend a certain amount of money each year on buying books (or other cultural products). This expenditure is, in fact, the very income of the country's publishing industry. Now, if appropriate policies are formulated, these individuals would most likely be willing to spend two or three times this amount and, in return, gain access to many more books (for example, all books published in the country or all books in their areas of interest). Therefore, if we shift the flow of people's access to books and payment from a physical state to an electronic one, the publishing industry's income can be multiplied several times over. These mechanisms should be designed so that every person who needs books pays an annual fee and, in exchange, gains access to a large number of books. For instance, the subsidy paid to university and school students for purchases at book fairs (which, of course, is always largely misused) could be considered part of this access right, or it could be paid to publishers so they can make their books available to the public electronically. Of course, devising such mechanisms is relatively complex, and the difference in the quality of works, and consequently the difference in income for various authors and publishers, must also be taken into account.

4. Digital versions of textbooks, academic books, and generally all works whose authors' and creators' fees are paid by government agencies (independent of book sales) can be made available to the public for free. (Just as, for example, all works produced by the US federal government are free of copyright).

5. In developed countries, parallel to the creation of movements supporting the free dissemination of information, licenses have emerged to regulate the publication of "copyright-free" works, and this greatly aids the management of copyright for works. Some of these licenses include: (a) Creative Commons (CC): When an author wishes to allow the distribution of a work and its use by the public, this license provides a kind of flexibility in how this licensing is done, and provided specified criteria are met, users no longer have concerns about copyright infringement. This license includes four conditions with four symbols, enabling commercial or non-commercial use. (b) GNU Licenses (GNU): A type of copyleft license for free content, primarily used for software. All reproduced copies and their derivatives must be under the same license. (c) Public Domain: Works not covered by intellectual property laws fall into the public domain and can be used by the public. Works created before the formulation of copyright laws, works whose copyright has expired (such as most classic works), works placed in the public domain by the owner, and works that never had copyright or whose copyright has been lost are in the public domain.

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Endnotes

1- Forcehimes, Andrew T, "Download This Essay: A Defence of Stealing Ebooks", Think, Volume 12, Issue 34, June 2013, pp 109–115

A translation of this article was published in the Iran newspaper: "Let Us Download Books!", Andrew Forcehimes, translated by Ali Pirhayati, Iran newspaper, No. 5715, 12 August 2014

For a critique of this article, see the following articles:

"Download with Caution", Seyed Mohsen Eslami Ardakani, Ketab-e Hafteh weekly, No. 451, 11 October 2014

"A Critique of Forcehimes' Article", Mohammad Hadi Mirshamsi, Atna (Allameh Tabataba'i University News Agency), 7 January 2017.

2- Bringsjord, Selmer, "In Defence of Copying", Public Affairs Quarterly 3 (1989) 1-9.

3- Deazley, Ronan (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing

4- In a sense, just as public telephones or public baths no longer serve much of a function today, libraries too are becoming a thing of the past. Of course, libraries have other functions, such as providing study halls and so on, which should be offered in other forms after examining the level of demand.

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