The end of creativity is in sight, we are told. The Recording Industry Association of America (RIAA), large publishers, literary and music agencies, and even rock stars, have declared that urgent repairs are required to copyright law. Even now, software pirates in their corsairs are descending upon music, books, movies and anything else in digital form. Why bother creating anything when it will be instantly disseminated around the globe, without you seeing a penny for your efforts?

To address this perceived threat, the US passed the Digital Millennium Copyright Act (DMCA), expanding the power of copyright holders to seek redress against those who violate copyright in the digital realm. It also created criminal penalties for those who would attempt to defeat technical copy-protection mechanisms. The RIAA and compatriots are now pressing for the Secure Digital Music Act, which would mandate copy-protection hardware in consumer devices.

These initiatives are introduced with piety. Are not copyrights just property, like your home or car? We are only protecting what is ours. You lock the doors to your house; we just want to lock the door to our music, and only let in those we choose.

This assumes that there is a direct parallel between a copyright and other property. Let us examine this assumption.

A copyright is an order that only certain individuals, the copyright holders, are allowed to do something, in particular to make a copy of a creative work. It is a government-granted monopoly, and if the modern economic consensus agrees on anything, it is that government monopolies must be approached with caution. Such monopolies should be limited in time and scope, be targeted to a particular purpose that private enterprise cannot efficiently provide, and yield a general good for a wide portion of the citizens of the state.

Traditional copyright meets these tests. A copyright is limited to a particular artistic creation, it lasts for a particular amount of time, and the rights of the copyright holder are balanced against those of the rest of the citizens. For example, once consumers have purchased the tangible form of a work, such as a book or a CD, they can treat the tangible form as theirs. They can read it or play it as much as they want, they can make copies for their own private use, they can sell it to someone else. Copyrights are not perpetual: after a certain period they expire, and the work becomes freely available in the public domain.

This is sensible. If I paint my house green, I cannot prevent someone else from building a green house that looks like mine. If I could, how long would it be before there could be no new houses? Intellectual property is different from any other kind of property, which allows someone the exclusive use of a particular thing, but does not keep anyone else from owning an identical object.

Copyright has successfully balanced the rights of the creators of work (and their assignees) and the rights of the public for a long time. Now, the claim is that it is obsolete. This claim is broad, and yet supported by no evidence. What could the RIAA hold up as a clearer example of the dangers of digital piracy than Napster? Yet Napster was shut down without recourse to a single new piece of legislation; the Copyright Act, written far before the microprocessor, was equal to the task.

The RIAA and others would unbalance a long and careful compromise between the needs of those who create new works (and who have a legitimate need for protection of their work so that they profit from it) and the general public, whose rights are constrained by the grant of copyright. This is not an idle concern. Professors have been threatened with legal action for discussing encryption technology, one Russian programmer has been arrested on criminal charges for developing software which allows the blind to read eBooks. New absurdities (such as mandatory copy-protection chips) are propounded every day.

Copyright as it exists today can serve the digital world of tomorrow as well as the analogue world of the past.

c.pettus@thoughtsmith.co.uk

Christophe Pettus is director of technology of Thoughtsmith Ltd, a creative, technology and business strategy consultancy