Law in the Media - Essay Example

Download file to see previous pages ?Introduction The Copyright, Designs and Patents Act 1988 (CDPA) is an act that defines copyrights. One of the provisions of the act is that it is a copyright infringement to issue copies of a copyrighted work to the public; another copyright infringement is to copy copyrighted work. In the digital age of file-sharing, in which there is an uploader who makes copyrighted work available to the public, and a downloader who is copying said copyrighted work, the provisions of the CDPA 1988 should apply to these actions. However, it is not that simple. File-sharing networks are diffuse and decentralized, therefore it is difficult to pinpoint who is supplying works to the public. Moreover, new technologies, such as BitTorrent, complicate matters because only bits of files are downloaded from a swarm of people, and this swarm of people may not be considered to be the individuals making the work publicly available. BitTorrent also relies upon temporary files that are created, bit by bit, before the permanent file is assembled, and the CDPA 1988 does not cover these temporary files. Another issue is that there are copyright protections that may be used, and the CDPA 1988 does not make it illegal to circumvent these protections. For these reasons, it seems that the CDPA 1988 is not keeping up with the ever-changing digital world, and should not be used by artists who are harmed by file-sharing and BitTorrent, as it is difficult to apply the Act to these copyright infringements. Copyright, Designs and Patents Act 1988 A copyright is, in a nutshell, an exclusive right that someone can own to “copy the work; issue copies of the work in public; perform, show or play the work in public; to broadcast the work or include it in a cable programme service; or to make an adaption of the work or do any of the above in relation to an adaptation.” (Copyright, Designs and Patents Act 1988 II(16)(1)(a-e)). A copyright infringement is simply doing any of the above without permission of the author of the work. (Copyright, Designs and Patents Act 1988 II(16)(2)). The author is the person who creates it, and, in the case of music, is “the person by whom the arrangements necessary for the making of the recording or film are undertaken.” (Copyright, Designs and Patents Act 1988 I(9)(1) ; Copyright, Designs and Patents Act 1988 I(9)(2)(a)). Copyrights expired after 50 years. (Copyright, Designs and Patents act 1988 I(12)(1)). Basically, if you create a piece of music, you own that piece of music for fifty years. You, and you alone, have the right to copy your piece of music, issue copies to the public or perform the music, broadcast it or adapt it. It is yours. If you wrote the lyrics, then you own the lyrics. If you wrote the music, then the music is yours. If you performed the music, then you own the recording of the live performance. Sound recordings are owned by the maker of the recording. (MIPI). The Problem with The CDPA in the age of the Internet The CDPA, having been crafted in 1988, could not have foreseen the developments that implicate copyrights in the Internet Age. For instance, one of the major copyright infringements is something that was not explicitly covered by the CDPA – illegal file-sharing, which is tantamount to Internet piracy. Internet piracy is the cause of falling CD sales across the board, as sales have steadily fallen year to year since piracy began. (Music Industry Blames Huge Illegal Download Market for Ever-falling Sales). The largest academic survey, commission by the University of Hertfordshire found that teenagers and students have, on average, more than 800 illegally copied songs on their digital music players. (Sabbagh, 2008). The problem is not just with peer to peer networks, but also in the common practice of lending CD to a mate and allowing them to copy the CD. This has the same chilling effect as does the illegal downloading of songs off the Internet, and hurts artists and the industry just the same. (Music Copyright – Featuring Jamelia). One of the problems with illegal downloads is that young people, who make up a large percentage of the illegal downloaders, are simply confused about copyright laws. They learn how to operate their peer-to-peer music sharing programs while being confused about what is lawful and what is not. (Palfrey et al., 2009, p. 80). The young, called “Digital Natives” tend to feel that the law is unreasonable, and they also tend to be unaware that what they are doing is illegal. (Palfrey et al., 2009, p. 80). For instance, the young people who were interviewed by Palfrey, et al. found that the “digital natives” who were interviewed found that the majority of young people did not understand the nuances of copyright law, such as the participants how believed that peer-to-peer file sharing was illegal and wrong, but actions such as burning CDs was acceptable and legal. (Palfrey et al., 2009, p. 85). It is clear the file-sharing presents a problem. However, copyright law, including the CDPA, has failed to keep pace with the different incarnations of file-sharing. There is some issue on whether P2P sharing would even fall under the purview of the CDPA. Danay (2005), however, states that it does. He explains that the uploader, who is the person making the file available through the network would be guilty under the CDPA of making copies available to the public. Meanwhile, the downloader, who is the person essentially taking the work that the uploader is supplying, is guilty of making an unauthorized copy of the work. Therefore, both the downloader and the uploader run afoul of the CDPA, according to Danay (Danay, 2005, p. 16). There is, however, an issue with distribution and whether it falls into the purview of the CDPA, and whether the provisions of the CDPA would be effective in combating the issue. In the beginning, Napster was the file-sharing network of choice, and copyright law was effectively used to defeat the legions of Napster users. It was a fairly straightforward usage of copyright law, and it was able to discipline the “unruly digital practices” (Bowry & Rimmer, 2002, p. 2). However, the technologies that came after Napster, namely Aimster, Freenet, Morpheus, Grokster and Kazaa, presented problems that were not contemplated by the CDPA. Their distribution was more decentralized and anonymous then was Napster, and was more globally disseminated (Bowry & Rimmer, 2002, p. 2). This is a distinction worth noting – Napster had centralized control, so it was easy to prove copyright infringement, and it was easy to find somebody to blame for this. Thus, the CDPA or any other copyright law would not have a difficult time being applied to the Napster case. However, with the technologies that came after Napster, the control was decentralized. Such as was the case with Freenet, as it was designed, unlike Napster, so that it did not depend upon any one person or any one computer. There is no one person who controlled Freenet, so it was essentially immune to the issues that plagued Napster. This was the same case with the other file-sharing networks that were decentralized and considered to be run like an anarchy (Bowry & Rimmer, 2002, p. 10). Because the CDPA was created before these new technologies could be contemplated, it does not cover these different instances, for it only covers straightforward copying and distribution. It is good for Napster, as Napster was centralized, but it would be ineffectual at best against the other sites which are not centralized. It would need to be updated to cover the different ways that peer-to-peer file sharing is accomplished. For instance, it did not offer technological protection that would be appropriate for the Internet Age, and would help with curtailing copyright abuses. Technological protection that could have been offered by the CDPA would be a rights management system which is capable of monitoring and metering all conceivable uses of an artist's work (Pallas Loren, 2001, p. 2). If the CDPA would have provided some kind of technological protection, it would have been more relevant to the digital world. This protection that could have been provided would have enabled the copyright owner to determine, before initial distribution, “what types of uses are permissible and the terms of use” (Pallas Loren, 2001, p. 2). These types of uses could be embedded in computer code or baked into the microchips of devices. The computer code can make a digital file read-only/copy-never, which means that it could not be copied or modified or make the digital file copy once, which means that the file could be copied only once and all subsequent attempts to copy the work would fail (Pallas Loren, 2001, p. 2). While the CDPA could address these technological advances by making such technological protection mandatory, it might infringe upon liberty. The CDPA, could have, however, legally protected the right to use these technologies to protect the artist's work. The CDPA could have also been helpful in addressing the concerns of the copyright owners by creating new offences regarding circumventing such protections. The United States and Australia have created just such legislation (Bowry & Rimmer, 2002, p. 11). For instance, the World Intellectual Property Organization (WIPO) adopted a Copyright Treat in 1996, which states that countries must provide adequate protection against technological circumvention techniques that circumvent the technologies listed above. Pallas Loren (2001) states that such protections against circumventing technologies encourages copyright owners to “capture the promise of digitial distribution and reduce the cost of one of the negative effects of technological protections,” which makes such legislation a “rational policy choice” (Pallas Loren, 2001, p. 4). Case Study - BitTorrent Complicating matters is the relatively new technology, BitTorrent. BitTorrent is a peer-to-peer “file swarming” software that works considerably different then the other technologies that rely upon peer-to-peer software. BitTorret complicates the matter of file sharing and copyright protection further, because entire files are not being uploaded or downloaded. Rather, downloads are from bits of the copyrighted work from millions of different users. So, the downloader downloads small parts of the file from the different users who are swarming the site, called the person's peer set, in random order. Once a small part of the file is downloaded from one user, the next small part of the file is downloaded from the next user, and so on. BitTorret allows the user to download tiny parts of the file from a large number of users, so it is faster then the traditional file-sharing networks such as Kazaa and Limewire (Rietjens, 2005, p. 329). However, BitTorrent's technology is not only faster then Kazaa and Limewire, but it makes applying the CDPA even more complicated. The CDPA, with its lack of protection of digital files, is applied to file-sharing sites such as Kazaa and Limewire fitfully at best, due to the decentralized nature of the sites, and it does not contemplate making offenses regarding circumvention of technological protections. So, the CDPA is pretty impotent against these file-sharing arrangements. BitTorrent makes application of the CDPA even more complicated, because of the way that it works. Entire files are not copied from users, so it is difficult to ascertain if the tiny file bits that are uploaded by the user even come under the auspices of the CDPA at all. The first question is whether the process used by BitTorrent would be considered to be reproducing, as contemplated by the CDPA. As Rietjens (2005) states, there is not an issue with determining that the final copy that the user gets from the BitTorrent network is a copy as contemplated by the CDPA, as it clearly is a reproduction. However, the process of BitTorrent entails creating temporary copies in the process of downloading and uploading, and this is where the issue is more complicated. While some updated legislation has addressed this concern, notably the Infosoc Directive of 2001, which is a directive implementing the World Intellectual Property Organization Copyright Treaty of 1996, in that the Infosoc Directive of 2001 explicitly stated that reproduction includes both permanent and temporary reproductions, the CDPA did not address this contingency, therefore the BitTorrent process would not be covered by the CDPA provisions against copying works. In fact, the CDPA, according to Rietjens (2005) explicitly states that “there is only reproduction if a substantial part has been copied” (Rietjens, 2005, p. 332). Therefore, the CDPA does not cover the technology of BitTorrent, insofar as it uses small parts of files as its reproduction method. Further, BitTorrent implicates the portion of the CDPA which states that one of the acts of copyright infringement is the act issuing copies to the public. According to Rietjens (2005), this provision was intended to adapt the CDPA and other copyright protections to the technologies of the 21st Century. To see why this is an issue, one must examine the BitTorrent process in more detail. In BitTorrent, there are seeders and leechers. The seeder is the person who is issuing the copy to the public, for, if the seeder is not on-line, then the file may not be uploaded by users. The seeder is connected to a swarm or leechers, who are the ones that send most of the parts of the file. However, since all parts of the file originate with the seeder, only the seeder is involved with issuing the copies to the public. The leechers are not so implicated. The problem is, according to Rietjens, is that most of the file-sharing in BitTorrent comes from the leechers, not the seeders. The issuing copies to the public infringement contemplated by the CDPA is mainly tailored towards “the needs of point to point or point to multipoint communication, such as situations where one person makes a work available for download on a website” (Rietjens, 2005, p. 334). In other words, the provisions of the CDPA is tailored for the person who puts a work on a website for others to share. The swarming technique used by BitTorrent complicates this, because the leechers are not the ones making the file available, but the seeders (Rietjens, 2005, p. 334). BitTorrent is therefore one technology that is not contemplated by the CDPA. The way that the process works means that the majority of the people who are distributing files on this network would not be considered to be making copies available to the public, so it would be difficult to apply the CDPA to these leechers. The CDPA also does not contemplate temporary copies as being copyright infringements, so the BitTorrent process of creating temporary copies of file bits in the process of making the permanent copy is also not covered by the CDPA. Thus, the CDPA would be impotent against the BitTorrent technology, by and large. Conclusion The digital age has clearly provided challenges to traditional copyright law, such as that put forth by the CDPA 1988. As this law was crafted before the digital age, it should not be used for the new technologies, as its provisions are outdated and cannot cover the different ways that individuals are abusing copyright laws. For instance, it is silent on technologies that protect copyrighted works, as it does not provide for an offence for those who circumvent these copyright protections. It also does not legally protect the use of these protections. Moreover, it does not contemplate the file-sharing networks that are decentralized, therefore it is difficult to pinpoint who, exactly, is infringing upon the copyright. And, in the case of BitTorrent, which is one of the newest methods of file-sharing, its provisions probably would be impotent. This is because of the way that BitTorrent operates – temporary files are created, bit by bit, before the permanent file is created, and the CDPA did not address this issue. At least one commentator, Rietjens (2005) states that the CDPA explicitly only covers the final copy, so this is one technology that falls outside the purview of the CDPA. Moreover, according to Rietjens (2005), the method of distribution would fall outside the purview of the CDPA with BitTorrent, as it relies upon a swarm of leechers who would not necessarily be considered to be the ones making the files available to the public – only the seeder would. Since the BitTorrent relies upon these leechers, it would be difficult to apply the CDPA to this new technology. It is therefore clear that, if the CDPA is to remain relevant, it must keep up with the different technologies such as BitTorrent. BitTorrent is no doubt just the start of file-sharing networks that will use different technologies then those contemplated by the CDPA. The CDPA, therefore, should be amended to include different technologies that do not rely upon traditional peer sharing technologies. It must also make explicit that technologies that protect copyrighted works are admissible, and that anybody who attempts to circumvent these technologies would be punished by law. Lastly, it must make explicit that it covers the different people who use file sharing technology in diffuse networks that rely upon decentralization, such as Kazaa and Freenet. It is clear that the crafters of the legislation that hopefully will amend the CDPA to keep pace with the digital age will need to be well-versed in different technologies and the possibilities that will be in the future. Otherwise, the CDPA is not legislation that should be used by digital copyright infringement, and that the Infosoc Directive 2001, which clearly does contemplate different digital technologies, should be the legislation that should be used in cases of copyright infringement. Bibliography Bowrey, K. & Rimmer, M. (2002) “Rip, Mix, Burn: The Politics of Peer to Peer and Copyright Law.” First Monday, vol. 7, no. 6: pp. 1-24. Copyright, Designs and Patents Act 1988. Accessed 15 November 2011. Available at: http://www.opsi.gov.uk /acts/acts1988/ukpga_19880048_en_1.htm Danay, R. (2005) “Copyright Verses Free Expression.” International Journal of Communications Law and Policy. MIPI. “Sampling Music – Are You Doing the Right Thing?” Accessed 14 November 2011. Available at: http://www.mipi.com.au/IgnitionSuite/uploads/docs/Sampling%20music%20-%20are%20you %20doing%20the%20right%20thing%5B1%5D.pdf “Music Copyright – Featuring Jamelia.” UK Intellectual Property Office. 2007. Accessed 14 November 2011. Available at: www.ipo.gov.uk/jameliacase.pdf “Music Industry Blames Huge Illegal Download Market for Ever-Falling Sales.” Telegraph.co.uk. 22 Jan. 2010. Accessed 14 November, 2011. Available at: http://www.telegraph.co.uk/finance/newsbysector /mediatechnologyandtelecoms/media/7048795/Music-industry-blames-huge-illegal-download- market-for-ever-falling-sales.html Palfrey, J., Gasser U., Simun, M. and Barnes, R. “Youth, Creativity and Copyright in the Digital Age.” International Journal of Learning and Media. Vol. 1, No. 2. June 2009: 79-97. Pallas Loren, L. (2001) “Technological Protections in Copyright Law – Is More Legal Protection Needed? Accessed 13 November 2011. Available at: http://www.bileta.ac.uk/01papers/loren.html Rietjens, B. (2005) “Give and Ye Shall Receive! The Copyright Implications of BitTorrent.” Script-ed, vol. 2, Issue 3: pp. 327-344. Sabbagh, D. “Average Teenager's iPod has 800 Illegal Music Tracks.” 16 June 2008. Accessed 13 November 2011. Available at http://technology.timesonline.co.uk/tol/news/tech_and_web/personal_tech/article4144585.ece ...Download file to see next pages Read More