Why is the Copyright Act of 1988 no longer adequate?
- Users Attitudes towards materials found on the internet
Originally the internet was associated with free information access and sharing that was limited to a relative small number of people, many of whom originated from the academic community. However the growth of the internet and its users has meant an increased use of the internet for information retrieval and distribution, communication, and interaction by a global audience. This set of new users do not feel bound by academic standards, or the set of rules known as `Netiquette' that previously governed users' conduct in cyberspace and thus they feel that anything found on the internet is public material and thus any copyright notice attached with it is considered of little or no consequence. The problem of improper use of copyright - protected materials is further amplified by the incredible ease with which the WWW can be created, and which allows virtually anyone to become a web publisher.
- Underlying Characteristics of the Internet
Caching
The Internet, operates on a ubiquitous `copying and transmitting fashion,' i.e. information is accessed by duplicating data stored in binary files before sending it across the globe – a process known as Caching. Although `cached' copies are purely transitory and will be discarded as soon as the computer used is shut down, it has not been so far clarified decisively. In the context of U.K. copyright law, temporary storage of a copyrighted work in a computer's RAM memory is at first sight an infringing reproduction, therefore browsing could also be, despite the fact that without a transient copy there is no access to on-line information.
Inlining
Inlining is a technique, which enables creators of web pages to embed content (e.g. text, or images) by including a reference to the URL location of the material. No cache copy of the inlined material is made on the host server, since it is retrieved every time from the original source, yet many information providers feel threatened by this practice, because the inlined content appears as integral part of the page, to which it is inlined. So far, there has been only one dispute arising from inlining. It involved the comic strip `Dilbert' and has settled out of court with removal of the materials involved (2).
Framing
Introduced in 1996 by Netscape Communications Corporation as a feature of their web browser, the <FRAME> tag allows the viewer screen to split into multiple scrollable sections (`frames') that operate as independent windows containing text, graphics, multimedia, or other frames. It is therefore argued that end users may be easily misled to believe that all material on screen originates from the same server. Only site owners themselves can ensure that there is no confusion as to the ownership of the materials presented within the frame. Furthermore, it is arguable whether framing can be covered by the scope of the implied licence for linking, since it does not take the end user to the web site, but rather brings the site to the user through another (framing) site, thereby altering his or her perception of the material. The controversial nature and threat to copyright of this feature was seen in the Washington Post Co. v. Total News case.
- Ease of Plagiarism and illegal copying
Although the UK Copyright Act of 1988 protects Musical/Artistical works and the rights of performers, technology has once again outdated this feature of the act as well. The introduction of uploading software, CD copiers and file formats such as MP3 and AIV have meant that these works are no longer protected. This point was perhaps best highlighted in the recent court case between Napster.com and the Recording Industry Association of America (RIAA) which branded Napster a “copyright infringement machine” (3). However whilst Napster has now been shutdown, nevertheless it acted as a catalyst to many other “sharing communities” like itself such as aimster.com, imesh.com and mp3.com. Similarly this approach to illegal copying is not merely limited to music files and is extended to movies and software. This is as a result costing the entertainment industry and software companies amongst other, billions of dollars out of pocket.
Perhaps the greatest shortcoming of the UK copyright Act of 1988 is that it only implies to the United Kingdom and thus what maybe considered against the law and breaking copyright agreements in the UK may be perfectly legal in the United States. Similarly this problem has been further exasperated as cyberspace has no geographical boundaries. Information and data are transmitted across state borders at incredible speeds. Bonds to geographical jurisdiction are fragmented, if non-existent, and questions as to where copyright infringements occur arise.
The Internet and copyright: An alternative viewpoint
One alternative yet radical viewpoint is that by placing their materials on the Internet, copyright owners are granting `implied licences' to the rest of the users to link to this information. The rationale for that is based on the nature of the Internet itself as a meta-network, i.e. the network of networks, which requires guidance by pointers for users to locate the vast amounts of information stored on it. Linking is custom and practice, and the reason for the WWW’s success. So, there is, more or less, an implied licence for linking, unless the site owner has expressly stated an objection.
However I believe that this theory should be linked with Netiquette with an e-mail request sent to the owner of the site for permission to link.
Proposed Solutions
When determining possible solutions to the current inadequacies of the UK copyright Act of 1988 it is vital to comprehend that the current laws were designed mainly for the protection of published material. Digital works are an entirely different category, both conceptually and technically and thus it may be said that they require a whole separate set of laws. Whether we approach this matter from a progressive or conservative point of view, the fact remains that there is an urgent need for copyright law to be able to deal with the new challenges posed by Internet technology.
Encryption is one possible solution that has been presented by which a purely technological solution would allow the protection of digital data. Such a method has already been used for email with the invention of Phil Zimmerman's Pretty Good Privacy (PGP) (7). However such a system would put the publisher in a very strong position compared to the other party, and would be open to abuse. Similarly the system would again raise grey areas of what data should be encrypted and what should be available to the general public.
- Electronic Copyright Management Systems (ECMS)
One proposed method is employing electronic copyright management system (4). Such a system is seen as being more preferable to encryption and allows viewing and reading for free, but a fee for permanent storage and downloading. However such a system may have legal implication and large grey areas in terms of what information should be charged for and what should be public knowledge.
- Transcopyright – Xanadu Project
A notion developed by Ted Nelson in conjunction with his project “Xanadu”(5).Xanadu publishing is a long-standing proposal for a new literary medium (very much like the WWW) that would preserve integrity, copyright and royalty for digital works, and yet allow everyone to reuse already existing materials.
The disjunction between the territoriality of legal disputes and the ubiquity of cyberspace has led to several proposals concerning the creation of a separate jurisdiction for cyberspace. Jurisdictional problems can be tackled on an international level by either creating a special international court for on-line disputes arising from intellectual property infringements, or by introducing an international advisory and arbitration organisation that will assist national courts in dealing with them. A potential model upon which this international court or organisation can be mapped is the “Virtual Magistrate Pilot Project” (6) of the Cyberspace Law Institute (CLI), a new on-line tribunal not bound by territorial borders. The project is carried out by eight “magistrates” (usually with an in-depth knowledge of technical as well as legal matters) who conduct arbitration via e-mail and publish their decisions on the institute's web site. The decisions cannot award damages, only injunction - type remedies; nevertheless, they are issued much faster than any decision of a national court. So far, the magistrates have only dealt with e-mail disputes, but it may not be too long before they will have to arbitrate intellectual property cases. In contrast such a dual method will mean every country will have two sovereigns governing different areas of law. This would create vast grey areas between them that could render the proposal ineffective.
Conclusion
To conclude, the UK Copyright Act of 1988 was adequate at the time of design. However in the thirteen years since its design, Technology has come forward leaps and bounds. As a result this act that was initially designed mainly for the purpose of non electronic sources has now become out of date or is being largely ignored due to the growth of technology. However when incorporating any solutions to the current inadequacies, it is vital to realise that whilst the rights of copyright owners are an important component of the copyright equation, so are the rights of public for information dissemination, freedom of expression and informational privacy. As a result looking into the future, the government needs to re-evaluate the interests of all those involved and legislate towards a new more flexible copyright framework, suitable for the digital age. Similarly, due to the global nature of digital technology with no geographical boundaries, perhaps a more suitable solution would be to incorporate such a framework into a “cyberlaw”.
Marwan Nawaz
Word Count: 2006
