Internet Law and Home Copying - Research Paper Example

Internet Law and Home Copying In CBS Songs v Amstrad Consumer Electronics the House of Lords opined that liability for isation arises; either explicit or implicit, or an authorisation to commit the disputed act. In this context, making available an activated link to a third party website; would constitute authorisation to access material, on account of such activation1. The notion of authorisation was elucidated with this ruling. In this case the House of Lords interpreted the word authorise in the light of the Copyright Act 1956. It held that authorise meant to permit or permit by implication, a third person to perform an act; either on his own behalf or on behalf of the person to whom the right had been granted. Their Lordships found that Amstrad had neither granted such right to, nor authorised infringement by its customers. Thus, the Court differentiated between conferring the power to copy and granting the right to copy. Furthermore, this case clarified, as to what would render an individual a joint tortfeasor, in copyright infringement2. The plaintiffs were concerned with the following categories of infringers: infringers, designated as pirates, who made a substantial number of copies, for pecuniary benefit. These pirates seldom utilised Amstrad’s recording equipment. The other category comprised of home copiers, who employed Amstrad’s or other manufacturers’ recorders to make replicas. This process cost less than £1, whereas the original recording’s cost varied from £5 to £103. The sale of such equipment could possibly assist copying; but it certainly could not authorise such conduct, which was at the discretion of the person operating the recording equipment. Consequently, it would be incorrect to contend that Amstrad had authorised infringement of the plaintiff’s copyrighted material4. Infringement occurs whenever copyrighted material is duplicated without the authorisation of its owner. It also occurs when copyrighted material is broadcasted or transmitted, without authorisation, by some communication mode, such as telephones, internet or cable television5. These transmissions are governed by Section 24.2 of the Copyright, Designs and Patents Act 1988, in the UK6. This Act deems to be an infringement, activities carried out with the knowledge or belief that transmitted or broadcasted unauthorised copyright material would be made available to the public either in the UK or any other place7. Moreover, this legislation protects computer software as a literary work. According to section 17.2 of this Act8, the activity of copying a literary work is to be construed as reproducing such work in any material form. It includes electronically storing the work in any medium for distribution or personal use9. Section 17.6 states that the activity of copying would even apply to the making of ephemeral copies of the protected work10. Therefore, in the UK, even the mere display of copyrighted material on a computer screen would constitute reproduction of the work11. In the UK, authorisation of copyright usage falls under the purview of Section 16(2) of the Copyright, Designs and Patents Act 198812. Under this section, infringement of copyright occurs when a person authorises another person to duplicate, distribute, broadcast or to do any other activity with regard to the copyrighted work, without obtaining a proper licence or permission of the owner of the copyright in that work13. Obviously, some other party will be the direct infringer in such cases. Nevertheless, the person who authorises the illegal use of the copyrighted work will be held liable. It had been estimated in 1984 that 40 million sound recordings had been sold, whereas the number of blank tapes sold was 70 million14. This implied that the number of illegal copies were twice that of the legal copies. In the Amstrad case the House of Lords were addressed, for the first time in1988, regarding infringement of copyright by authorisation15. CBS relied on section 1 of the Copyright Act 195616; which states that only the copyright owner has the exclusive right to authorise copying. As such, Amstrad did not have the right to allow copying of music cassettes, which was vested only with the copyright owner. However, the buyers of the tape recorders manufactured by Amstrad were able to make illegal copies of the cassettes. Thus the defendant had infringed the exclusive right of the copyright owner. In addition, the promotional advertisements of Amstrad had stated that buyers could copy music records through the twin – deck tape recorders. Amstrad had included a warning in its advertisements that the copyright owners’ prior permission would have to be procured, before copying the music. It had nowhere stated that it was granting permission or rights to the buyers. Furthermore, the new tape – recorders could be used for making legal copies. All these factors proved that Amstrad had not intended to authorise or grant any right to copy, to the buyers of its recording devices. Nevertheless, in Moorhouse v University of New South Wales, the High Court of Australia held the UNSW liable for authorising infringement of copyright. The UNSW had provided a photocopying facility to its students. The contention that it had not directly committed the infringement was not accepted by the Court. Since, the photocopier’s control was vested with it all the time; hence, it was held to be liable17. In the Amstrad case, the company had no control after selling the tape deck. Therefore, there was no authorisation of infringement; whereas, in Moorhouse, control had always been present with the UNSW18. Although CBS Songs was decided under the Copyright Act 195619, the same principles can be applied under the present Copyright, Designs and Patents Act 198820. As such, the law relating to infringement of copyright by authorisation has not changed in England, since this case. Therefore, at present, companies behind P2P software rely on the case to argue that they are not liable for copyright infringement as they not authorising infringement but rather are providing the software for lawful means. In the US, prior to the Supreme Court’s decision in Grokster, the leading authority was the Sony Betamax case21. This was a claim of secondary liability for copyright infringement against Sony based on its manufacture of video recorders (VCR). It was submitted that due to the fact that purchasers of the VCRs could record copyrighted television programmes, Sony was providing the means to infringe. Furthermore, it was argued that Sony had constructive knowledge that infringement would occur. However, the Supreme Court held that as there was no evidence that Sony was encouraging infringement, and the machines were capable of significant non infringing uses, Sony was not liable for copyright infringement by virtue of their sale of VCRs22. Copy Right Designs and Patents Act 198823 , would acknowledged the reality, could have been the legislation of home taping for private purposes. However, in so far as this could seriously endanger, the interests of the owners of rights in the recordings, this would have been incompatible with Art. 9 of the Berne convention; which provides that any exceptions to a copy right owners reproduction rights must not conflict with the normal exploitation of the work nor unreasonably prejudice the legitimate interests of the author24. Copyright owners in movies, authors, music composers and performers are some of the entities who contend that home copying causes enormous loss to the UK copyright industry. This is countered by home copiers who state that such home copying causes no loss to the copyright holders, and that it actually benefits them. The reality is that the prevention of copyright infringement, in respect of home copiers, is a daunting task. In addition, the copyright holders cannot proceed against the tape manufacturers for facilitating copyright infringement. This is on account of the decision in the Amstrad case, which precludes authorisation of infringement by manufacturers25. The UK government should have provided an equitable solution to this dilemma, in the Copyright, Designs and Patents Act 198826. To this end, it could have rendered home taping for personal uses legal. However, such a course of action would have been at variance with Article 9 of the Berne Convention. This Convention requires any piece of legislation to ensure that the lawful interests of the copyright owner are not compromised, on account of an exception to the owner’s rights regarding copyright reproduction.27 Till the Stockholm Conference of 1967, it was the preserve of the 1956 Copy Right Act to establish the specific uses of copyrighted material that was beyond the purview of the copyright owners’ control. Until the 2nd of January, 1990, the United Kingdom did not assent to the Berne Convention’s 1971 Paris act. Consequently, there was no requirement prior to 1990; to conform to the provisions of article 9(2) of the Berne Convention28 in the United Kingdom. It was upto the Copy Right, Designs and Patents Act (CDPA) 198829 to ensure ratification of the 1971 Paris Act. The UK Copy Right mechanism is based on a system of theoretical principles. It adheres to a Common law tradition and derives its strength from the regulatory potential of the aforementioned criteria. An important concept in the UK Copy Right Act of 195630 is that of fair dealing. According to this Act, fair dealing with a work cannot be construed to be a copyright infringement. The UK Copy Right Act 195631 specifically exempts from copyright infringement, fair dealing in the context of reporting contemporary proceedings, analysis or review, and research or private study. Accordingly, these fair dealing stipulations extend to the areas that are explicitly controlled by the Berne Convention. Some of these are, reports on current events, quotations and Press summaries. Moreover, the fair dealing principle comprises of the special provisos of the Convention, viz, Articles 10bis and 10(1) of the Brussels Act32. In respect of the three step test, fair dealing in the context of research or private study is of special concern. In the context of copyrighted material, the international controlling system is provided by the three step test of Article 9(2) of the Berne Convention33. Copyright infringement entails use of a substantial portion of the work. Consequently, section 49(1) of the Copyright Act 195634, states that if the fraction of the work used is comparatively less, then there will be no infringement. To rectify this situation, the fair dealing principle permits the use of even significant portions of copyrighted material, in some instances35. The UK government, in accordance with the fair dealing principle, had permitted the copying of copyrighted material for purposes of research or private study. In this connection, it had permitted libraries to make just a single copy that was to be put to personal use. Considerable apprehension had been generated on account of the copying indulged in by home copiers36. To this end the UK government made an attempt to impose a levy on the sale of blank tapes. However, this initiative proved to be abortive. The British Phonographic Industry stated with apprehension that there had been a 36% increase in the circulation of pirated music in the UK. There are, in general, two categories of persons who indulge in such piracy; home copiers who utilise their computers for this purpose, and members of organised crime, who make and sell illegal copies of copyrighted material of the country37. Piracy has assumed alarming proportions on account of the proliferation of CD Rom and DVD burners in most computer systems. Personal use of such optical drives is legal in the United Kingdom. However, the copying and sale of copyrighted material has been noticed in every nook and corner of the country38. Nevertheless, such copying and sale of copyrighted material is just a superficial feature of piracy. File sharing over P2P networks, especially by using BitTorrent and other such software, results in loss to the music industry that is difficult to even estimate. Everyone knows that loss due to digital piracy is enormous, but no one has been able to arrive at a reasonable estimate in this context39. The ubiquitous computer with its CD ROM and DVD burners has engendered a quantum jump in the copying of copyrighted material. The tape decks of Amstrad, over which a hue and cry had been raised; pale into insignificance, in comparison with the ease of copying and sheer volume of material that is being copied. It was estimated that some billion music tracks were being illegally downloaded in the United Kingdom every year. To make matters worse, these digital copies are normally indistinguishable from the original. Thus a very large number of near perfect copies can be obtained at very low cost. Some estimates have placed the number of blank CD ROMs at 350 million per year, and this could be a conservative estimate. Such piracy involves huge numbers, not only in respect of music tracks but also copies made40. There is considerable debate over home copying and the extent of the damage that the copyright holders sustain as a consequence. In this context, the Easyinternetcafé case could provide the beleaguered music industry with a very strong instance of the loss caused, due to circumvention of the law by taking recourse to the time shifting excuse. It has become very difficult to distinguish between home piracy and home copying. The EU’s Directive 2001/29/EC41 on the Harmonisation of Certain Aspects of Copyright and Relaxed Rights in the Information Society, of the European Parliament, seeks to transform copyright law in the European Union. Article 5(2)(b) of this Directive42 states that a Member State could allow a natural person to replicate copyrighted material, on any medium, for use that is neither directly nor indirectly of a commercial nature. Such exceptions have to ensure that the copyright owner is provided with equitable compensation, after considering whether an adequate mechanism, with the required technological expertise is in place that could prevent copying. In this manner, the time shifting exception is provided in conjunction with ensuring adequate compensation for the copyright owners43. Article 6 of this Directive, directs the Member States to make available adequate legal protection, in the event of evasion of these technological initiatives44. Specifically Article 6(4) of this Directive45 requires a Member State to adopt such measures as will guarantee that the copyright owners provide the wherewithal to avail of the time shifting immunity in the copyright law. Hence, Member States should make certain that technological measures are not utilised for the preclusion of replication that can be classified under the exception provided by time shifting. According to Article 646, the time shifting exception becomes inapplicable to instances, wherein access to copyrighted work is provided to the public on the basis of agreed contractual terms; and in such a manner that any person can gain access to it at any time and from any place. It is apparent that the intention of this proviso is to permit copyright owners and consumers to contract out of the exception, whilst ensuring that the exception is confined to the extant limits, duly eliminating these on demand services47. In order to mitigate the losses due to home copying, the Copyright, Designs and Patents Act 1988 48was enacted. The situation obtaining could have been acknowledged, if this Act had permitted home copying for personal use. This did not transpire, because it was perceived that such measures could critically impair the interests of copyright owners; which would have been in contravention of Article 9 of the Berne Convention49. This piece of legislation precludes an exception to copyright owners’ reproduction rights that are at variance with the normal use of the work or results in an unreasonable detriment to the copyright owners’ lawful rights50. As an alternative to bestowing total freedom upon home copiers, in respect of replicating copyrighted material for personal use the Copyright, Designs and Patents Act 198851 took into cognisance the following measures. These are discussed, briefly in the sequel. First, the provision of voluntary licenses; which would permit home copiers to make legitimate copies, after they had purchased a license for this purpose. This measure was disregarded as being unviable52. Second, a pay – at – source approach that recommends an additional charge on copyrighted material. This additional charge, at the point of sale, would be commensurate with the expected use of this material. Some qualms were entertained regarding the escalation in cost that this measure would engender. However, this measure could be adopted in the future53. Third, technical solutions such as spoiler systems and anti – copying devices; had been available to the recording industry. Their success was limited, because of the development of technologies that could circumvent these devices. Consequently, the recording industry prefers to adopt solutions founded on digital recording technology. To this end, section 296 of the Copyright, Designs and Patents Act 198854, incorporates several punitive actions against those who develop and use devices that override anti – copying devices. Fourth, the payment of a royalty on blank media and recording equipment that involves the collection of an additional amount from buyers, and distributing it amongst the copyright owners. This strategy entails considerable difficulty in its implementation. It has been implemented in Germany55. As such, it would be very difficult to discover the infringements committed by a home copier. Moreover, even if an action against an infringing home copier were to emerge successful, its preventive effect would be insignificant. The devices used in replicating copyrighted material have no mechanism to prevent illegal duplication. Although several solutions have been suggested by the extant legislation, no practical success has been achieved due to the ubiquitous nature of the internet, as well as loopholes in the internet law. Bibliography Amanda Michaels & A. Norris A practical guide to trade mark law (3rd edition Sweet & Maxwell, 2002) 185 Andrew McRobert, ‘Digital Music & Copyright: Third Party Liability & Home Taping’ < http://www.austlii.edu.au/au/journals/DTLJ/2001/2.html> accessed 23 March 2009 Article 9 of the Berne Convention Article 9(2) of the Berne Convention Articles 10bis and 10(1) of the Brussels Act Article 5(2)(b) of Directive 2001/29/EC Article 6(4) of EU’s Directive 2001/29/EC Article 6 of EU’s Directive 2001/29/EC BBC News, ‘Music piracy in UK soars’ accessed 24 March 2009 CBS Songs Ltd v Amstrad Consumer Electronics plc (1988) AC 1013 Copyright Act 1956 Copyright, Designs and Patents Act 1988 Copy Right, Designs and Patents Act (CDPA) 1988 Copyright Act 1956 s1 Copyright Act 1956 s 49(1) Copyright, Designs and Patents Act 1988 s 16(2) Copyright, Designs and Patents Act 1988 s 17.2 Copyright, Designs and Patents Act 1988 s17.6 Copyright, Designs and Patents Act 1988 s 24.2 Designs and Patents Act 1988 Dominic Free & Nic Garnett, ‘The Home Copying Loophole Widens: Sony & Others v. Easyinternetcafé’ accessed 24 March 2009 Gerald Dworkin & Richard D. Taylor, Blackstone’s Guide to the Copyright, Designs and Patents Act 1988: The Law of Copyright and Related Rights (OUP, US, 1989) Graham J.H. Smith & Ruth Boardman, Internet law and regulation (Sweet & Maxwell, 2007) 64-65 Guido Westkamp, ‘The Implementation of Directive 2001/29/EC in the Member States’ < http://ec.europa.eu/internal_market/copyright/docs/studies/infosoc-study-annex_en.pdf> accessed 25 March 2009 Hector L. MacQueen, Charlotte Waelde & Graeme Laurie, Contemporary intellectual property: law and policy (2nd edn OUP, 2007) 150 James Popple, A Pragmatic Legal Expert System (Dartmouth (Ashgate), 1996) 186 Jenkins, ‘Copyright, Design and Patents Act 1988” < http://www.jenkins.eu/copyright-(statutes)(1)/part-1-copyright-.asp#s3> ‘Law Report: Copyright law treated with contempt should be altered’ The Times (London May 13 1988) Martin R.F. Senftleben, Copyright, limitations, and the three – step test (Kluwer Law International, 2004) Market Information, ‘The BPI Piracy Report 2003’ accessed 24 March 2009 McDermott Will & Emery, ‘The European IP Bulletin’ < http://www.mwe.com/info/news/euroip0905.pdf> accessed 24 March 2009 Moorhouse v University of New South Wales (1976) RPC 151 Sony Corp. of America v Universal Studios, Inc. 464 US 417 (1948) ‘Software Piracy on Internet’ Business Law Europe (January 18 1995) The EU’s Directive 2001/29/EC ‘The Berne Convention (Paris Text – July 24, 1971) 1’ < http://ipmall.info/hosted_resources/lipa/copyrights/The%20Berne%20Convention%20_Paris%20Text--July%2024,%201971_%201.pdf> accessed 25 March 2009 UK Copy Right Act of 1956 UK Copyright Service, ‘UK copyright law: A summary’ accessed 23 March 2009 Read More