Copyright Law Issues - Essay Example

The rapid growth of the Internet has challenged traditional legal concepts of copyright protection1. This is further evidenced by the impact of the Berne Convention on Copyright2 to which the UK is a signatory grants reciprocal rights for nationals from different countries. For example, a citizen within a Berne Convention jurisdiction will enjoy the same protection under UK copyright law as if he was a UK citizen3. Accordingly, once a copyright work is created in the UK, it automatically has copyright protection in all other countries that are signatories to the Convention4. This clearly has implications for online protection of copyright with the proliferation of the Internet and multifarious online uses involving copyrighted works. For example, if data is stored on a US computer is downloaded in the UK, UK law will apply and not US law under the Convention5, which creates issues of enforceability and policing in an internationally networked environment offering broader scope for anonymity. Furthermore, the protection of copyright online has become increasingly contentious due to the ease of copying materials in machine readable form and distribution on the Internet6. This is compounded by the low cost of copying and transmitting files on the Internet and the difficulty of policing a borderless jurisdiction further exacerbates the issue as to where liability should lie7. Section 17 of the CDPA addresses copyright infringement and provides that copyright protection prohibits copying the work, issuing copies of the work to the public, renting or lending the work to the public, perform the work, broadcast the work, adapt or amend the work. Additionally, these acts will constitute copyright infringement if there is copying of the “substantial part” of the copyright works8. Remedies for copyright are commonly damages (often for lost royalty payments), injunctions, accounts for profits or orders for delivery up9. The fair use doctrine is the most common copyright exception under section 29(1) of the CDPA10. Alternatively, section 31 of the CDPA provides a defence of incidental inclusion of copyrighted materials such as when filming or recording live events; which is particularly relevant to inclusion in artistic work, sound recordings, film or broadcasts. The sheer vast range of availability of information online has further rendered it difficult to enforce the principle that there is no implied licence to copy11. Theoretically, downloading someone’s web page is clearly copyright infringement and the Shetland12case asserted that without permission, linking to third party material may also constitute copyright infringement. However, copyright infringement essentially becomes a contentious issue if the infringement results in income loss, which has become particularly pertinent regarding file sharing or peer to peer (P2P) file swapping online13, blurring the distinction between infringement and the parameters of the “fair use” defence under the Copyright Designs and Patents Act 1988 (CDPA). Furthermore, notwithstanding the implementation of the Copyright and Related Rights Regulations 2003 (Regulations) granting right holders the right to reproduction, exceptions have been made under the Regulations to ensure smooth transmission of works online, which creates the same problems of policing effective copyright protection online14. The aftermath of Napster in 1999 created panic and hostility to P2P file sharing15. However, the panic of the worldwide recording industry (motivated by fears of loss of economic control of major labels and revenues) ignored the wider facets of file sharing, which can be considered from various viewpoints16. Instead, “previous research on the phenomenon has been overly focused on the policy and rules to regulate infringing use of the technology17”. However, it has been argued that this emphasis ignores lawful applications of file sharing, which in turn can have a negative impact on the legitimate development of P2P as a technology and indeed social interests18. For example, file sharing use in research and education is “presently acknowledged by technicians and has led to the development of P2P research and education file sharing models, such as eduCommons, SETI@home, Edutella and LionShare19, allowing users to share text, audio, and video files stored on computers in support of learning and research20”. Additionally, critics have highlighted how the doctrine of fair use and fair dealing has struggled in the P2P file sharing environment with Internet service providers bearing the brunt of liability21. This is further compounded by the fact broad category of data covered by the definition “file” in the digital arena including22: 1) Files shared outside network – including paper documents and information stored in tape; and 2) Files shared inside network – for example digital files solely being exchanged in a network, even if a small local area network. In this context, the term “file” includes digital files shared in a network23. With regard to the definition of “sharing” commentators have taken this to include general participation in the network and “either downloading or uploading, or both, can be regarded as sharing24”. Accordingly, if information is posted on a network or files are downloaded from a network, whether a file is exchanged between thousands or two people, each example will constitute file sharing25. The majority of research on P2P sharing has dealt with the issue of regulation applications of file sharing networks to illegal file downloading26. However, file sharing also encompasses “many other types of online information, data distribution, grid compounding and distributed file systems”27. The fair use doctrine is the most common copyright exception and is an important defence in the event of copyright infringement proceedings via p2p file sharing28. In contrast to traditional copyright scenarios, the fair use doctrine in the p2p file sharing field has been divided into two categories; namely the primary infringer and end users of the file sharing network, who are actually uploading, downloading or distributing the copyrighted works without permission29, and the file-sharing intermediaries30. However, the role of file sharing intermediaries and the fair use defence has been problematic due to the fact that their “special function creates a different nature between file-sharing providers and traditional copying intermediaries,31” further highlighted by the high profile cases of Napster, Grokster and MP3.com32. In contrast to the exception for librarians, the file sharing intermediaries offer primary infringers a technical platform, whilst strictly not being directly involved in the infringing conduct33. This technological loophole has exercised judicial authorities as to who should be liable and who is entitled to rely on the doctrine of fair use online. It has been commented that the current case law has “made it even harder for these defendants to take advantage of the fair use doctrine in the context of file sharing34”. Furthermore, this recent judicial rationale has effectively eroded the traditional concepts of fair use embodied in the CDPA in the file sharing context35. Wang highlights the negative consequence of this and comments “imagine a community where the public garden is largely surrounded by private land. How could people get to the garden and enjoy flowers without some means of access of the public right to use the garden36?” In considering solutions to ensure the protection of competing rights in online copyright, the inherent difficulty in encompassing a new definition in the CDPA is the need to cover broad range of online use and the pace of technological change in file sharing. However, amendments are desperately needed to clarify legitimate online use of files and liability. Alternatively, an initial consideration is the entertainment industry’s approach to the growing problem of copyright infringement caused by file sharing system37, which propounds the “public levy model”, which is subject to government control.38. This scheme involves a government tax on purchases of recordable media, in exchange for legal copying for copyright works39. As evidenced by Germany, this system has been adopted by continental Europe40. The other model adopted by the entertainment industry is the private model based on private contract principles. In contrast to the public levy, the private model is rooted in collection of compensation for copyright owners by agreement, whilst simultaneously protecting copyright41. A prime example of this is Apple’s iTunes online music store to directly address music piracy and illegal downloads. The iTunes model is based on contract between Apple and the consumer, which “effectively reallocates copyright entitlements42”. It has been argued that both private and public models are vital economically in ensuring copyright holders derive commercial benefit from their works and legally in clarifying the boundaries of copyright protection online.43 Nevertheless, the models do not clarify the parameters of fair use, which is effectively curtailed in the context of online research and education. The public levy system operates on the basis that every user pays taxes in return for the right to use copyrighted works. An alternative option propounded is the voluntary model under which “authors could give away their copyright content for free and make monetary remedy by selling “ancillary services that are not The inherent flaw in the voluntary model is the justification that copyright owners do not want to derive economic benefit. Nevertheless, the voluntary model highlights the fact that the CDPA as it stands and current decisions relating to file sharing in the entertainment context are not appropriate to the wide range of circumstances involving copyright and P2P file sharing online. Accordingly, it is submitted that amendments are needed to the current legal system to account for these variances in P2P networks and copyright. The current trend of case law seems to be “eroding the extent of the right to fair use defence44” and as such, a consideration of the voluntary model through official discussion in context of existing CDPA provisions may at least prompt a meaningful consideration of restoring equilibrium online and clarifying the boundaries of liability for internet service providers and intermediaries. Bibliography Akester., (2005). Copyright and the P2P challenge. EIPR 106. Bainbridge, D. (2007) Intellectual Property, Pearson Longman. James Boyle (2003) The Enclosure Movement and the Construction of Public Domain 66 Law & Contemporary Problem Jennifer Davis (2007). Intellectual Property Law. 3rd Edition 2007 Oxford University Press P, Ganley., (2006). Surviving Grokster: innovation and the future of peer to peer. EIPR 14 Kretschmer., (2003). Digital Copyright: The End of an Era Opinion. EIPR 333. Ian Lloyd (2005) Information Technology Law. OECD Information Technology Outlook 2004, Chapter 5 Peer-to Peer Networks in OECD Countries (2004) available at www.oecd.org. Graham Smith., (2007) Internet Law and Regulation. Sweet & Maxwell Waelde and MacQueen (2004). From Entertainment to Education: The Scope of Copyright. IPQ No. 3 259. Vaver & Bentley (2004). Intellectual Property in the New Millennium. Cambridge University Press Y, Wang., (2007) Where Does Fair Use Go? An Insight Into Regulating File Sharing in Research and Education available at www.bileta.ac.uk Diane Zimmerman., (2003). Authorship without Ownership: Reconsidering Incentives in a Digital Age 52. DePaul Law Review 1121. Websites & Legislation Berne Convention at www.wipo.int CDPA 1988 at www.opsi.gov.uk Read More