Intellectual Property Law: How Far There Is Protection on the Internet for the Intellectual Property Right - Term Paper Example

Topic Explain in outline one form of intellectual property right. Consider how far there is protection on the Internet for the intellectual propertyright Researcher: Rakesh Nair. Word Count: 4140. Actual Date of Submission: 05/03/2007. Date of Submission: 07/03/2007. Tables of Contents 1.0 Introduction - Intellectual Property Rights and Law 2 1.1 Intellectual Property Rights 3 1.2 Intellectual Property Law. 4 2.0 Copyrights Law in the UK. 6 2.1 Applicability of Copyright Law 7 3.0 Recent Issues in Copyrights. 10 3.1 Bootlegging 11 3.2 Application of Copyright Law in the International Market. 12 3.3 Corporate Intervention 13 3.4 Copyrights on the Internet 14 4.0 Conclusion. 16 Bibliography and References. 17 Internet: Weblinks 18 1.0 Introduction - Intellectual Property Rights and Law Recent times have seen increased efforts by government agencies, business bodies, individual entrepreneurs and entertainers including movie makers, actors and musician trying to protect individual and collective innovations from being copied illegally. Such efforts have come in the form of ownership rights and threat of legal proceedings against those who infringe on these innovations and ideas. Innovations may come as products, ideas or concepts that may be unique in its current state of affairs and never tested for applicability. This brings us to a situation whereby the innovator may try to protect his invention so as to benefit from its uniqueness. How far can these innovations be protected from being illegally copied The justification on part of the innovator from stopping its innovations or products from being replicated in some other form needs to be debated both on ethical and moral grounds. This argument is particularly common and debated in the pharmaceutical sector. The scope of such protection covers a gamut of industries, professions and products. We shall restrict the scope of this study to the copyright laws, internet sector and particularly focus on the music industry. 1.1 Intellectual Property Rights Bainbridge (2002) describes intellectual property rights as a form of property that can be dealt with just as with any other property, and which can be assigned, mortgaged and licensed. Intellectual property is property in the legal sense: it is something that can be owned and dealt with. Looking at this definition, as suggested by Bainbridge, one can observe that the properties rights do not just include rights associated with land or buildings or any other assets that carries the physical characteristics of a "land-building" asset form. Intellectual property gives rise to rights and duties. It establishes property rights, which give the owner the right to do certain things in relation to the subject matter. Bainbridge, in his study, supports this argument with an example relating to the music industry - if the right is a copyright and the subject matter is a piece of music, the owner of the copyright has the exclusive right to make copies of the sheet music, to make an arrangement of the music and to control the performance of the music unless until he surrenders that right to some music label company. According to the government-backed UK - Intellectual Rights, intellectual property (IP) allows people to own their creativity and innovation in the same way that they can own physical property. The owner of IP can control and be rewarded for its use, and this encourages further innovation and creativity to the benefit of us all.1 It is essential to protect innovations from being illegally copied or pirated. Such guarantee of protection to innovations and inventions will encourage further innovative research and development and also reward entrepreneurs and innovators for their discovery. The protections come in the form of law and legal proceedings. 1.2 Intellectual Property Law. Bently and Sherman (2001) defines intellectual property law as a means to regulate the creation, use and exploitation of mental or creative labour. Intellectual Property Law is that area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill. The law deter others from copying or taking unfair advantage of the work or reputation of others and provide remedies should this happen. Bainbridge suggest several different forms of rights or areas of law - Copyrights Rights in performances Patents Registered designs Design rights Trade marks Of the 6 different forms of rights highlighted above, the most common forms of legal rights obtained are based on copyrights, patents, trade marks. Some of these rights are applicable only in some industries. For instance, trade marks are used in almost all industries and are generally focused around logos and symbols. Copyrights, on the other hand, are used for material - literary and artistic material, music, films, sound recordings and broadcasts, including software and multimedia. It would be useful to categorise these different form of rights under the statute and common law in the UK - 2 Statute Common Law (or Equity) Copyrights Patents Trade Marks Registered Designs Design Rights Rights in Performances Plant Varieties Breach of Confidence Passing Off Trade Libel In this study, as stated earlier, we are particularly interested in studying the copyrights issues in the music industry. But first we shall try to assess the definition of copyrights and also the need for copyrights laws for preventing infringement. We shall also look at the copyright policies in the UK and the factors that determine the necessity for the protection of individual creations and the problem associated with it. 2.0 Copyrights Law in the UK. Copyright is a property right that subsists in various areas including literary works, artistic works, musical works, sound recordings, films and broadcasts. It is argued that fundamentally copyright law should not give rise to monopolies and that it is permissible for any person to produce work that is similar to a pre-existing work and as long as the later work is not taken from the first. For instance, according to UK law the author of a work is the person who creates it or the employer in case of a person who creates his/her work under the guidance of an employer - is the normally the first owner of the copyrights. The author owns the right until 70 years after his/her death or 50 years after it was created depending on the type of work. The United Kingdom is a member of two main international conventions on copyrights - (i) The Berne Copyrights Convention and (ii) Universal Copyright Convention. These conventions lay down the minimum standard of protection to be attained and for reciprocity of protection between two countries that are signatories to the conventions. The conventions provide for a legal mechanism that foreign nationals can use against those that infringe copyrights very much with the same status as that of a citizen of that country. Being a member of the European Union, many of UK's law pertaining to copyrights and intellectual property rights, in particular, have been adopted or framed as per European requirements and perspective. Three particular issues mark the impact of the EC in intellectual property law: The drive towards greater harmonization of the laws of individual member states; The move to community-wide intellectual property rights; The impact of the EC treaty on the use and abuse of intellectual property rights. As in the case of musical creations such as melodies and songs, the copyrights owner enjoys certain rights with regards to making a copy, broadcasting and giving public performances. Individuals or entities who does any of these without prior authorisation or permission of the owner may be subject to legal actions for copyrights violations The ownership of a copyright is alienable and it can be transferred to another or a licence can be granted by the owner to another to carry any of those actions stated earlier. In the UK, copyright gives rise to two forms of rights - The proprietary or economic rights in the work i.e. the right to make and control copying Moral rights which leaves the author who may no longer be the owner of the copyright with some control over how the work is being used or exploited in the future However it is argued that moral rights are relatively a new concept in the UK copyright laws, though well established in other European countries. Though UK copyright laws provide for moral rights, it still lacks behind other European countries largely due to historical developments and conceptual foundations. The moral right of the author to control the manner in which his/her work may be used in the future once the ownership rights are given up still remains with the author irrespective of subsequent ownership and dealings with the ownership of the copyrights.3 2.1 Applicability of Copyright Law Copyright laws are a complex set of regulations and processes that dissect the degree of ownership the actual owners enjoys and degree of freedom the actual users can enjoy without infringing the rights of its true owner. Wall (1998) argues that copyrights law must bring a balance between the two concerned parties by allowing the owner to gain from the work and the latter to make appropriate use of it.4 Therefore the balancing act must be able to accommodate the benefit accruing to both the parties. However in recent times we have seen that the complexities of applying copyright laws are fundamentally difficult and that its success in many ways depends on the honesty of the end-users. This is particularly true in the case of music albums and songs which can be obtained from the internet free of costs. Applying copyright laws have been difficult recently and many of its drawbacks can be attributed to the technological development taking place in the media hardware industry. Copyright laws have, in many ways, failed to tackle the problem of illegal downloading of music materials. The development in internet world allows for easy download of music materials free of costs and evidently there are not many technical means to stop such infringements of rights. Many cases the problem is not the legal means but the difficulty in tracking these infringements which considering the magnitude of the internet world is quintessentially an impossible task at this stage. Consider the example of technological advancement in the Video Recorder / DVD Player industry. These media equipments are "enthusiastically" marketed to the public and prices of many of these hi-tech machineries have fallen drastically. Recording equipment is used in many homes to make copies of DVD's movies and other entertainment programmes. This development, often termed as "time-shifting", has a profound effect on the rights position in several areas of the entertainment industry. It would be practically impossible to check each and every attempt at illegal copying attempts. The example must not be interpreted in a pessimistic manner and the solution must rather come from manufactures of DVD players and other equipments by providing for software codes and other hi-tech anti-piracy measures. Therefore, as in the case of many other areas of work protected by copyrights, musical works suffer at the present moment from many levels of unauthorised reproduction. McFarlane (1989) states that rights owners have virtually no control over such matters as the unauthorised reproduction of television programmes and films which contain musical works. The resultant loss to the copyrights is considerable.5 As stated earlier, the root cause for the problems plaguing the music - entertainment industry is the arrival of equipments with a capacity to make multiple copies or uses of works protected by copyrights. In many cases it is practically impossible to identify these duplicate pirated versions of copies. Therefore, only practical way of restricting piracy that may deem effective is impounding the mass illegal reproduction of authorised work and by imposing on-the-spot fines and other penalties. It would be useful, at this juncture, to highlight some applicable copyrights remedial measures taken in the UK. The offences are triable either way, with fine or imprisonment. The Copyrights Design and Patent Act, 1998 has introduced the following actions as criminal offence, if done, without proper authorisation of the copyright owners - 6 Making for sale or hire; Importing other than for private sue; Possessing in the course of business with a view to infringing copyright; In the course of business, selling or letting, or offering or exposing for sale or hire; or exhibiting in public or distributing; Distributing other than in the course of business to the prejudice of the copyright owner; Making or possessing an article especially designed or adapted for copying a particular copyright work; there must be knowledge or reason to believe that it is to be used to make infringing copies for sale or hire or use in the course of business; and Causing an infringing performance, playing or showing of a literary, dramatic. Musical or artistic work, sound recording or film; here also there must be knowledge or reason to believe that copyrights would be infringed. Given the remedies measures and having seen a brief analysis, we shall now divert our study to more real life examples and practical issues experienced in the recent past. The next chapter shall look at more contemporary issues. 3.0 Recent Issues in Copyrights. We have briefly analysed in the previous chapter the monetary loss to copyright owners from infringement of rights and illegal duplication of work without proper accreditation. A recent article on the BBC described piracy and counterfeiting as probably the biggest challenge the intellectual property (IP) system faced. It is estimated that 20 percent of the entertainment industry's turnover was lost to illegal copying.7 Considering that UK record industry is statistically the third largest in the world, the 20 percent loss is significantly high. Another statistics shows the magnitude of the monetary loss suffered by the media industry. Kieron Sharp, Director General - FACT points out that "Film piracy has been seen by some as a "soft" crime yet it brings harm and other serious criminal activity to local communities. Criminals made over 270m from film piracy in 2005, making this the worst affected single sector for intellectual property crime out of all IP industries". It is also argued that many of the reasons and problems associated with the copyright violations stem from the copyright laws themselves. In 2004, the BBC pointed out that the most complications associated where due to the difference in copyright laws across the globe. In the UK, sound recordings are currently only protected by copyright for 50 years. By contrast the work of authors, songwriters and composers - the song rather than the recording - is protected for 70 years after their death as compared to the 95-year protection in the US and 75 years in Brazil.8 Another interesting aspect of copyright violation stems from MP3 players, MP3 download and the transfer of songs from a CD to a portable MP3 player. It is evidently accepted that most people do engage in reproduction of music albums on a CD-to-CD basis, which obviously results in duplication of work and a loss of revenue to many record label companies. This is one of the many issues that have largely gone unchecked due to the easy availability of blank recordable CD's and many easily acquired duplication softwares. In June 2006, the British Phonographic Industry (BPI) announced that consumers would only be penalised if they made duplicates of songs for other people and that, at this point in time, transferring music to portable devices such as MP3 breaks copyright laws. Consumers may, however, do so if such transfer is meant for personal use. It must, however, be added that some success has been gained in the implementing penalties for copyright violators. The demise of Napster can be seen as one success story. 3.1 Bootlegging Recently though we have witnessed another form of copyright violation in the form of "Bootlegging". Bootleg recordings are musical recordings that are not officially released by the artist or their associated production companies. They may consist of demos, outtakes or other studio material, or of illicit recordings of live performances. The term "bootleg" is used to differentiate these otherwise unavailable recordings from "pirated" copies of commercially released material, but these recordings are still protected by copyright despite their lack of formal release, and their distribution is still against the law.9 Because of the complexities involved in stopping consumers from illegally resorting to bootlegging, many music artists now openly encourage bootlegging in the different way. Artists are now increasingly allowing and encouraging live audience recording, although it is generally considered that selling of such recordings as opposed to keeping them for one's own personal enjoyment or trading them for other audience recordings-to be illegitimate bootlegging.10 In theory, such recording of live acts, recording and compilation of music albums that are not legally released by the artist or the recording company is a criminal offence and punishable under the law. 3.2 Application of Copyright Law in the International Market. In June 2006, the BPI issued warning that consumers are breaking UK copyrights law by downloading music from a Russia-based site called allofmp3.com as it does not have the legal rights to sell music recording.11 The BBC points out that one survey shows allofmp3.com as having 14 percent share in the UK download markets. Matt Phillips, BPI spokesman, states that "It is illegal for them to sell the recordings in Russia or anywhere else because they are not licensed, and UK consumers are infringing copyright law because they are making illegal copies from an unlicensed source." Increase in the popularity of websites in making available music albums at low cost can be seen as one main reason for the increase in the download market industry. Competition between these online firms has drastically dropped the costs of downloading music. Considering that the no monetary payments are made to the copyright owner for their music, it rightful owner suffer significant revenue loss and also potential loss of employment for people who are engaged in the production of legal copies. The vulnerability of international law regarding copyrights is evident in the defence put forth by the owners of allofmp3.com. MediaServices, in its defence, pointed out that allofmp3 provides downloadable music to its customers based in Russia and it is not responsible for the action by the foreign users. In its defence, it also cited its legality by being licensed by the Russian Multimedia and Internet Society (ROMS) and the Right holders Federation for Collective Copyright Management of Works Used Interactively (FAIR).12 This argument in defence by MediServices has been contested by the International Federation of the Phonographic Industry (IFPI). According to IFRI, the ROMS licence was not legitimate and it would not cover consumers in other countries even if it was. This example shows the need for an international legal effort to curtail illegal music piracy spanning not just duplication of records using recordable CD's and DVD but also downloadable music using MP3 format and internet sales. Although significant steps have been taken, copyright law has not been fully harmonised throughout the European community. Despite being signatories to the Berne Copyright Convention, many member states still have differences. It is widely agreed that one set of problem arises from territorial characteristics of intellectual property rights. However taking example cited with regards allofmp3.com, an English court today might be expected to refuse to hear an action based on the alleged infringement of a UK right which occurs outside the jurisdiction. An exception, as it happened in the case of allofmp3, is where infringement by authorization is concerned and in such case it does not matter where the authorization was given provided that the restricted act was performed within the jurisdiction. 3.3 Corporate Intervention Many computer hardware and software companies are also taking steps to prevent violation of copyrights. Apple, for instance, have started coding their music songs downloads in an attempt to prevent unsolicited attempts at acquiring music materials illegally and at a lower cost. They have also developed their MP3 players to synchronise with only their own software. This has significantly helped Apple from preventing consumers from acquiring music materials for its digital players through illegal means. Microsoft has recently announced updates to Digital Rights Management file in its windows media player which prevents consumers from overcoming the restrictions imposed on its download capabilities. It is commonly employed on music downloading sites to restrict the use of music purchased and downloaded online to ensure copyright is not infringed. A program called Fairuse4wm has been posted on the net and is said to be capable of bypassing Microsoft's Digital Rights Management (DRM) system. Some internet music sites, including Napster, offer monthly subscription services where users can download an unlimited amount of music. This is controlled by DRM technology, so if a payment is missed, the user can no longer listen to any of their songs. But by removing DRM protection from the files, users could potentially download and keep many files. These examples have been included only to show the magnitude of the problem associated with the development taking place in the hi-tech hardware and software industry. The problem arises from few determined individuals or rather consumers who are determined at acquiring music and other media materials through illegal means. To tackle these issues, corporate bodies have taken stand to prevent their own products from being violated as there are bound to be knock-on affects of one industry on to the other. 3.4 Copyrights on the Internet There is a firm view that placing materials on the internet is like placing a similar item on a public domain. The internet is made up of interlinked public telecommunication networks to which computers are connected. There is virtually no control over individuals from accessing the World Wide Web (WWW) and the only available source of control being the internet service provider (ISP). This argument can be supported by Bainbridge (200) who argues that "at this present time, there is no one person who is in overall control of the internet; it would be described as information technology anarchy" He also makes an interesting point in saying that "because on the internet since there is virtually no control to prevent intellectual theft, many don't mind other's freely copying their material". This however, as per law, must not be taken as "free-for-all" concept. Abandonment of the economic rights does not necessarily mean that the moral rights under the copyright law have also been waived.13 As we saw in the case of allofmp3.com, it is widely believed that it is not possible to keep a check on the internet world and that there is a need for harmonization of copyright law across the globe. There is a need for many media service providers including manufacturers of media hardware to make a collective effort to prevent their own products from being part of the copyright infringement problem though not directly being a part of the problem. We have seen in this chapter that most of the problem stems from the complexities of enforcing copyright rights law on individuals and firms that fall outside the territorial jurisdictions. Also the lack of unified intellectual property right laws across the globe has contributed in the increase of violations and infringement of copyrights. There is a need to be increase global co-operation not just at the political level but also at the corporate and consumer level. The need to bring the internet, which is still largely unsupervised, under some sort of legal framework is an issue that has received constant attention. 4.0 Conclusion. We have seen through this study that intellectual property rights and laws have come a long way since its evolution. Entrepreneurs and other business bodies are increasingly trying to protect their innovations and inventions from being copied and replicated. On the economic side, the need for such control over exploitation of someone else works and efforts is understandable both on logical - economic and moral grounds. However, it is rather difficult to define a clear cut border line between what is moral and what is immoral way of exploiting rights. As suggested in the example of bootlegging, many are of the view that it must be permissible to allow consumers from going a certain degree beyond the line so as to maintain a level of consumer loyalty as is evident in the case of music bands and entertainment companies. In many cases bands often allow fans to video tape their live concert. The problem arises when these fans make illegal use of such recording to make monetary gains. The emergence of sites like YouTube and Google Videos allow fans to post video clips of concerts on the web for all to access free of cost. Disregarding the quality of many of these recordings, one can imagine the monetary loss accrued to bands and their production companies from their failure to sell their better quality products in the market through legal means. On the social side though, failure to sell their products and musical inventions have drastic consequences on the industry as a whole. Many individuals are engaged in the production stages and selling involves consider efforts and investments. Easy and free availability of materials on the "free-for-all" internet cuts into the income of the companies and artists alike. Loss of employment is other obvious consequences. Therefore the social and economic consequences make it necessary that there is a urgent need to control the spreading of illegitimate copies of artistic work and copyright infringement must not go unpunished. The international conventions like Berne Copyright Convention and Universal Copyright Convention have played an important role in the development of copyright law and in laying down minimum standards. Bibliography and References. David Bainbridge, Intellectual Property, 2002, 5th Edition Gavin McFarlane, A Practical Introduction to Copyright, 1989, 2nd Edition. Raymond A, Wall, Copyright Made Easier, 1988, 2nd Edition. Lionel Bently and Brad Sherman, Intellectual Property Law, 2001, 2nd Edition. Hilary Pearson and Clifford Miller, Commerical Exploitation of Intellectual Property, 1990. Graham P. Cornish, Copyright - Interpreting the Law for Libraries, Archives and Information Services, 2004, 4th Edition. Internet: Weblinks BBC - British Broadcasting Corporation http://news.bbc.co.uk/2/hi/entertainment/6214108.stm http://news.bbc.co.uk/1/hi/entertainment/music/3547788.stm http://news.bbc.co.uk/2/hi/technology/5294750.stm Wikipedia http://en.wikipedia.org/wiki/Copyright_infringement http://en.wikipedia.org/wiki/Bootleg_recording#Legal_alternatives_to_illicit_bootlegging Read More