Using a browser like Netscape, file transfer and copying is easy. Publishing a web page requires a little more expertise, but as you will have observed, is done by thousands of K-12 students all over the net. And that is an essential difference with today's copying; it's quick, and easy. More. The digitised copy one makes is an exact copy, one that's indistinguishable from the original, to risk being oxymoronic.
Not only are these operations easy, they're exciting. One has the feeling of mastery over technology, of communicating with the world, of being at the leading edge..... Even though I was an enthusiastic reader of Science Fiction for many years, I'm still amazed and excited by the technology. How long was it from the discovery of the paleolithic paintings in the Ardeche caves until pictures were available on the web? I think it was less than a month. Compared with the time from the discovery of the Dead Sea Scrolls until they were available for public scrutiny, (about fourteen years), it's very exciting. But it's my contention that this very ease and excitement needs to be tempered with some understanding of our obligations and rights in dealing with copyright materials.
With the industrial revolution came change in the needs of property owners to protect a different kind of property. This was an era which produced tools, in other words the means to produce wealth. As tools developed, and it became possible to produce them in quantity, new laws were needed. To quote Barlow again, Copyright and patent laws were developed in most western countries to encourage the invention of tools - laws devoted to the delicate task of getting mental creations into the world where they could be used- and enter the minds of others - while assuring their creators compensation for the value of their use. (2)
In earlier times, copying (of any substantiality) was difficult; there were a limited number of ways of copying, all time-consuming and laborious, which yielded copies which were mostly poor replicas of the original, monastic copying and illumination notwithstanding. The very difficulty of copying was a kind of copyright protection in itself. Without the talents and resources of a Gutenberg, it was difficult to make a book. And so, copyright, evolving from the Statute of Anne in 1709 protected the expression of ideas reasonably succesfully for some 250 years. As an aside, prior to the Statute of Anne, the only way an author could make money was by dedicating his work to a famous or wealthy personage, and hope that that personage would be flattered enough to toss the author a bag of gold. Jonathan Swift said "I never had a farthing from my writings." (3) Let me also say that, although the Statute of Anne is seen as the beginnings of copyright law, it did not protect writers, but publishers, and was intended to provide publishing monopolies in an attempt to prevent the publishing of seditious materials - a form of censorship.
As technology continued to develop, the copyright acts of 1911 in Britain and 1968 in Australia survived the advent of the jellypad, the mimeograph, the Gestetner machine, and the spirit duplicator with some equanimity. Even the arrival of the early two-stage thermal photocopier, difficult to operate and producing copies of varying degrees of impermanence, had little impact. And then there began to appear, as Michael Fraser says "like so many Tardises", the plain paper copiers.(4) Copying, and multiple copying at that, became, for the first time, really easy. Up until this time, although the copyright laws had conferred certain exclusive rights on copyright owners, the difficulty of copying had mostly kept it within bounds which did not cause them a great deal of concern. It may well have been the inaction by copyright owners which led to the generally held but erroneous belief, at least in Australia, that any copying "for educational purposes" was permissible. Suffice it to say that the law coped with the technology in this instance, and we now have collecting societies which sample copying and pass on royalties to their members. The development of the videorecorder and the rise of off-air copying for educational use had been dealt with in a similar way in Australia, and some of the other Commonwealth countries, i.e. by voluntary licensing and the formation of a collecting society which represents copyright owners. Laws now protect both authors and publishers.
To return to the present. Copyright is part of a bundle of rights which are loosely referred to as "intellectual property rights". The various associated rights include patents, trademarks, industrial and trade secrets, circuit layouts, registered designs, the duty of fidelity, and confidentiality. Copyright protects "works". These are grouped by category as: literary, dramatic, musical, artistic, film, sound recording, broadcast, and published editions. Computer programmes qualify as "literary works". Certain exclusive rights are granted to the copyright owner in each of these categories.
In Australia, it is not necessary to register copyright, the protection is given automatically (5), once the expression of an idea has been reduced to a material form. This can be as print or handwriting on paper, signals on tape, or, probably of most interest here, entering data via a keyboard. So, materials on the net, of all kinds, e-mail, bulletin boards, gopher files and web pages are just as protected by copyright as printed books.
The United States constitution states that the prime purpose of its copyright law is "to promote the progress of Science and the Useful Arts". The Australian version lacks the poetry of the foregoing, merely stating that the Commonwealth has the power to make laws for the good government of the country, including those relating to patents, copyright and the like. Nevertheless, copyright laws around the world grant to their citizenry certain exclusive rights, and itís these rights of which we should be aware.
In general terms, the exclusive rights of a copyright owner include the rights to reproduce, publish, perform, broadcast, transmit and make adaptations of a work, and these rights can be sold or transferred to another person. The copyright laws of most countries, however, have what are generally referred to as "fair dealing" or "fair use" clauses, which permit users to copy limited amounts of a work for their own personal research or study. Itís important to understand that the stress in these clauses is on the type of use rather than the amount copied. Too often I am approached by people who assume that using a small quantity of a work for any purpose is "fair dealing" and that they can thus include the small quantity in, for example, a textbook they plan to publish. Once you begin to deal commercially with, or exploit a copyright work, fair dealing goes out the window, and you infringe the copyright in that work. There are other exemptions granted under fair dealing, including news reporting, criticism and review, certain library uses, legal advice and parliamentary uses, but these are not germane to this conference.
There are some materials which are not protected by copyright, either because the copyright has expired or because the author has expressly stated that he or she wishes to place the material in the public domain. The term of copyright protection for most items in Australia is for fifty years from the year in which the author died. Many countries are extending this term of protection to seventy years, and the United States is now considering an extension to 120 years, which will not make the use of copyright materials any easier. Note also that unpublished works are protected by copyright, but the protection term does not begin until the material is published, hence there is always a difficulty dealing with unpublished materials.
So, our use of copyright materials is constrained firstly by the exclusive rights of the copyright owner. Because copyright is an economic right, the owner may or may not be the author, as the rights can be sold or assigned to another party. In may cases, the copyright owner of published material will be a publisher, as those of you who have negotiated with journal editors will know from your own experience. In seeking permission to use the material you require, you will either have to negotiate with the copyright owner, or with a body which represents many copyright owners, such as The Copyright Agency Limited (CAL) in Australia, for print materials, or the Audiovisual Copyright Society (AVCS) for motion picture and television materials, or the Australasian Mechanical Copyright Ownersí Society for music. Other countries have similar bodies, such as the Copyright Clearance Center (CCC) for print materials in the United States, and DACS in Europe, which licences the use of artistic works.
While it is a relatively simple matter to negotiate a licence to use a copyright work for publication by one of the more traditional methods, creators of multimedia products are reporting a fairly high percentage of refusals when seeking permission to licence the use of works in multimedia productions. Itís believed that this is because the technology is so new that many of the copyright owners donít understand what is being asked of them, nor are they clear on what rights they may be relinquishing, and so find it safer and easier to refuse. I suspect that the same will be true, at least for a time, for those requiring permissions to use material on web pages, or for any associated activity such as the creation of electronic databases of text materials for libraries. So itís important, when negotiating permissions, to be very clear about what it is you intend to do with the material, and to make sure that the permission states explicitly what it is that you have permission to do. While talking about obtaining permissions, a frequently asked question is "How long should I spend looking for a copyright owner, at what stage can I give up and use the material anyway?" The answer, unfortunately, is that if you donít have permission, you don't have permission. Don't use the material. I repeat that itís also important for all of us to encourage, in any way we can, the various rights organisations to move towards the licensing of the electronic use of copyright material.
You'll note that I said that obtaining permission from the copyright owner was the first constraint in dealing with copyright materials, and up until recently, this was the only consideration. Now there are over sixtyfive countries which have implemented moral rights legislation, and such legislation is likely to be introduced into Australian law during the life of the current parliament.(6) Unlike copyright, moral rights are not transferrable, they remain with the author, and usually the authorís heirs for fifty years from the year in which the author dies. The basic moral rights which are given to authors and creators are:
While we are not likely to have any great difficulties with the right of attribution in any of our dealings, nor with the rights of publication and withdrawal, the right of integrity may give us pause. An artist may object to having the subtle colours of their work reduced to eight bits, or to the aspect ratio of their picture being changed, or to having the work truncated to fit the particular web page layout being designed. So, within the next year, you may well be having to consider the moral rights of creators when selecting contents for your web pages.
It's not so very long ago that the first personalised computers began to escape from their laboratories and their white-coated acolytes, and started pushing calculators and typewriters off desks. Their numbers and power seems to increase exponentially - the machine on my desk has more megabytes of RAM than my original XT had space on its HDD. Not content with merely multiplying rapidly, the PCís began to network, until today there are millions with Internet connections, enabling the rapid transfer of information from computer to computer. While this information was limited to what could be entered by way of a keyboard, there were human limiations, and the greater copyright concern remained the photocopier. But nothing stands still.
Scanning technology developed, followed by video and audio capture. Using satellites to aid in the transmission process, itís now theoretically possible to transmit the entire oeuvre of humankind across the globe in 7.5 seconds. And that's a 1992 figure. The Australian National University last year took delivery of a digital storage device capable of storing the entire collection of the Australian National Library.
There are compact discs capable of holding the Encyclopedia Britannica, and more. Multimedia programs store audio, video and text, along with graphics and still photographs. Our web servers carry vast amounts of information in all these formats.
Estimates vary as to how many people are connected via the Internet, but it's safe to say over tweny million. Each one of those people is capable of doing what I described earlier, downloading documents from all sorts of sites. More. Each of those people is capable of retrieving information, changing it, adding to it, copying it, editing it, and redistributing it, without detection, without acknowledgement, and without payment.
John Perry Barlow, in a provocative article in Wired magazine entitled "Selling Wine Without Bottles" asserts that the end of our current copyright laws are in sight, because they were developed to cover forms of works which are entirely different from the digitised material which they are now being asked to cope with. He likens the current laws to a leaky, sinking ship, and describes the efforts to keep the craft afloat as taking several forms; frenzied deck chair re-arrangement, stern warnings to the passengers that if the ship goes down theyíll face harsh criminal penalties, and serene glassy-eyed denial. (7) Those of you who are familiar with whatís been going on around the world in the copyright law arena will be able to think of examples of each of these approaches, particularly if you look at the activities of various self-interest groups as well as law-making bodies.
Barlow, as I said, is provocative, but I am not convinced that the scene is as desperate as he paints it. There is every reason to believe that the technology can be used to control the technology. We are already seeing the beginnings of an internet cash system which is becoming increasingly secure. Recently I visited a web site in the United States called "CD-NOW" (http://cdnow.com). I was looking for a particularly obscure recording of some Central Asian music. The disc was available, and, using my Mastercard, I was able to open an account with the store, order the disc and pay for it. The disc arrived on my desk six days later, - a very satisfactory transaction, if a little expensive on the freight side. So while my transaction may have been for a concrete object, thereís no reason why it should not have been for information in the form of digitised text or graphics, and could have been paid for in the same or a similar way. Most of us whoíve been surfing the net for some years have become used to the sharing of information at no cost. But it is not unreasonable that creators be rewarded for their efforts, and it is becoming increasingly obvious that this will happen, at least where material is accessed from a web server. What controls can be developed to cover the subsequent use of the material is a difficult question, as although copyright laws exist to protect works, it may be difficult for a New Zealand author to detect what is happening to his work in South Africa.
One difficulty which faces users in a "pay for play"situation is browsing. Will the web site offer abstracts of a comprehensive nature to tempt purchasers, will there be software that only becomes active when one downloads? I donít know.
Another problem that has occupied the cni-copyright discussion list (cni-copyright@cni.org) for some time recently has been the question of the legality of including links to another home page from your own web site. If, for instance, you were to create a page of womensí resources on the web, as a student at UCSD has done recently, you would want to include links to many other pages and sites. These would be pointing to information in which you did not own the copyright. Would you then be assisting others to infringe copyright by directing them to sites where they could download information that either the copyright owner did not want distributed or perhaps use it for purposes other than those covered by fair dealing? The discussion became very complex, but the general opinion towards the end was that it was the responsibility of the copyright owners who placed material on a web site to be responsible for the restriction of access if they were concerned about the use of the material. It was also generally agreed that URLís were probably not subject to copyright in themselves, as they could be regarded as facts, and were therefore not copyrightable.
It's probably hardly necessary to point out to you that we are in a time of change and transition. Copyright laws are but one example of laws which are causing problems in dealing with today's mediums. Laws however, take time to change, and fast change may not be beneficial. Change to the law stands a better chance of being workable and equitable if it comes about through the experience of the users of the new technologies, rather than in response to special interest groups who may want only to protect their investments in older technology. This means that the laws may not get any clearer for some time to come, but it's important that the members of the university community have a voice in the making of those changes. Remember that history abounds with examples of inaction leading to loss of liberties. It's also important to be aware that some of the rights granted under copyright law, and I refer particularly to fair dealing or fair use rights, are under attack. The United States Government Green Paper on the NII has proposals which will significantly change fair use laws in that country, as well as other changes which would affect the conduct of research and teaching. The Australian Government has charged its Copyright Law review Committee with investigating the feasibility of significant changes to copyright law, particularly with regard to subsuming the existing exclusive rights into two broad rights, the right of distribution, and the right of transmission. If this change is brought about, the concept of ìcopyî or ìreproductionî becomes much less significant, which is fine if you are a copier, but perhaps not so fine if you are being copied.
The point I wish to belabour is that of the importance of being aware of what's going on, and taking part in the debate so that your views are made known, and considered. Those of you who followed the saga of what is now known as "The West amendment" to the US's Paperwork Reduction Bill will be aware of the power of the net community as a force for political change in the face of special interests.
Not only should we be involved in the debates about change to the laws, we should also be aware of how the decisions of the courts can build up a trend. In the United States there have been a number of cases involving fair use; Texaco, Kinko's, Campbell , which suggest that as the costs of obtaining permission diminish, the right of fair dealing should diminish as well. I use this as an example, as the same is not at present true for Australia, but there is no doubt that as the net continues to shrink the world, the thinking in one country will influence the legislators of another. Most times have been times of change and uncertainty, but ours is the first generation which has presided over the birth and demise of so many technologies, and while that uncertainty persists as this technology and its related law develops, we need to be using the leverage which the uncertainty gives us to negotiate with copyright owners for the rights we want as cheaply as we can get them. In addition, as copyright owners ourselves, we need to be circumspect as to the rights we sell. Some publishing companies are already writing digital rights into contracts for print publishing, others are assuming they have them for copyrights they held before it was possible to digitise anything and they are digitising material on this basis. Motion picture companies now have contracts which describe "universal" rights, rather than the old "world" rights. Without academic involvement, the debate continues, and not necessarily to our advantage.
Particularly useful sites include:
These sites are some which will enable you keep up to date with developments and changes in the copyright and intellectual property debate, as well as providing pointers to platforms where your opinions can be heard. Technology continues to change the way things will be managed; while this paper was being written, news of a software package called "IVY" was received. IVY is a tracking device for music, which will enable copyright owners to monitor the usage of their music on the Internet, so the user pay software continues to develop.
2. Ibid. 3. Swift, J. (May 12, 1735) in a letter to Wm Pulteney, Esq, Dublin
4. Fraser, M. 1991 Colin Simpson Memorial Lecture, CAL, Sydney 1991
5. Commonwealth of Australia The Copyright Act 1968. AGPS Canberra 1994
6. Commonwealth of Australia Discussion Paper - Proposed Moral Rights Legislation for Copyright Creators. Office of Legal Information and Publishing, Canberra 1994.
7. Barlow, J.P. (March 1994) Ibid.
AusWeb95 The First Australian WorldWideWeb Conference