Michael Lean Division of Information Services, Queensland University of Technology GPO Box 2434 Brisbane QLD 4001 Australia Phone +61 7 3864 4024 Fax +61 7 3864 1283 email@example.com My Copyright Guide [HREF 1]
World Wide Web, Internet, Copyright, Intellectual Property, WIPO, Censorship, Cyberculture
This paper will provide an overview of some of the legal issues affecting Web content which have arisen during the past 12 months, including relevant litigation. It will then examine various regulatory measures which affect Web users, consider the validity of some current beliefs and finally outline some thoughts on safe IP management for Web users and creators, with some admonishments for the future survival of the Web.
The freewheeling, friendly anarchy which characterised the early years of the Internet is on the wane, and the Web as we know it stands in danger of being trapped between panes of regulation. With the growth of commercial interest and aspiration comes the desire for protection and exploitation of intellectual property, and as the Web spreads across national boundaries it arouses in governments of various persuasions the desire to regulate, censor and control. For example, Associated Press reported from Baghdad in February 1997:
"An Iraqi government newspaper has declared the Internet "the end of civilizations, cultures, interests and ethics." The computer network "is one of the American means to enter every house in the world," al-Jumhuriya said in an editorial Monday. "They want to become the only source for controlling human beings in the new electronic village." (Associated Press 1997)
While this is a particularly vivid example of the fear with which the Internet can be viewed, the subject of this very statement, the United States, is not immune from the same kind of fear and desire to regulate. At the time of writing, the oral arguments in Reno v. ACLU [HREF 2] have just been heard before the United States Supreme Court. This is a case in which a law against "indecency" - specifically the transmission to minors of indecent material via the Internet - passed by the US Congress, is being challenged on First Amendment (free speech) grounds. The law, known as the Communications Decency Act, or CDA, if passed, is predicted to have alarming consequences for users of the World Wide Web and the Internet generally. And, not content with attempting to regulate content, in the last week of March, Senator Jon Kyl (R-Ariz.) has introduced the Internet Gambling Prohibition Act of 1997, which would make illegal the transmission of any information related to gambling, including bets, wagers or the chance to win a prize or lottery.
Also in the United States, the Government of Georgia has passed HB 1630 [HREF 3] a bill which apparently makes it illegal to link to another page without the permission of the page owner. Some interpretations suggest that this legislation makes browsing itself illegal.
Nor are the United States and Iraq the only countries where regulation restricts, or attempts to restrict their citizens' access to electronic communications. Singapore, North Korea, Malaysia, China and Germany amongst many others, are all, for political, moral or religious reasons, proposing or implementing legislative or mechanical restrictions, and Australia may yet have its own Communications Decency Act, according to an article entitled Net Regulation: It's Australia for Censorship [HREF 4] on the Wired website.
There has also been much debate on PICS and other Web access protocols, something which can be a very insidious form of censorship [HREF 5].
(An excellent summary, (with links to other sites) of restrictions and regulations world-wide can be found at Sandra Davey's "See No Evil" [HREF 6] site, whereas Roger Clarke's and the Australian Computer Society's "Regulating the Net"[HREF 15] looks particularly at Australian regulatory attempts.)
The net community has not accepted all the attempts to regulate it with equanimity. The Internet being what it is, a means of rapid communication from many to many, it has been possible in some cases to mount concerted and often highly successful reasoned opposition to proposed regulations and restrictions, although the successes have always been in countries where some form of democracy exists. In many cases, once an issue has been raised members of the Internet community have been able to provide valuable advice to legislators wrestling with technology. For instance, see, the archives of "Link" an Australian email list, where members contributed funds in 1996 to enable an expert member of the list to travel interstate to provide advice to an Australian Broadcasting Authority enquiry on Internet regulation. This kind of practice is one which can only be encouraged, if the Web is to grow.
Given copyright owners control over all digital uses of their works, making even temporary RAM copies illegal
Interpreted digital transmissions of works as transmissions to the public, thereby giving owners control over all digital transmissions,
Eliminated "fair use" rights in any situation where it might have been possible to licence a use.
Taken away "first sale" rights, long enjoyed in the print world, from the electronic versions of works.
Attached copyright management information to electronic works, enabling them to be traced and located at all times.
Made it illegal to circumvent electronic protection (e.g. encryption) of copyright works, whilst ensuring that that protection became a reality.
Made online service providers responsible and liable for the content going through their networks,
Made "copyright" a compulsory study in schools. (Litman 1996)
Opposition at home forced the proponents to attempt to introduce their provisions as part of the US submission to the December 1996 World Intellectual Property Organisation (WIPO) Treaty Convention in Geneva. This move gained very little support, and the NII Report's recommendations are now, to all intents and purposes, dead in the water. Other effects of the WIPO Conference are discussed below.
The last year has also seen the first significant litigation involving the World Wide Web and copyright. Three cases are being tried at the time of writing; in Australia, Scotland (Great Britain) and the United States. Two of these cases, Shetland Times v. Shetland News [HREF 9]and Washington Post & others v. TotalNews[HREF 10], are about the provision of links from one site to another, and the decisions in each case may have a profound impact on the way the Web will be allowed to operate in the future. Very briefly, The Shetland Times alleges that the Shetland News has infringed its copyright by providing links from the News homepage to the Times homepage, using the text of the Times headlines as part of the links; a Scottish court has given the Times the equivalent of an interlocutory injunction, pending a hearing. This case seems to be evolving as one in which the copyrightability of both headlines and URLs will be considered.
In the United States TotalNews case, a company called TotalNews has put up a website using frames, with links to many other web-based news services. A group of these have joined and brought an action against TotalNews in the New York City Federal District Court. The complaint in this case involves accusations of "blatant acts of misappropriation, trademark dilution and infringement, willful copyright violations, and other related tortious acts." (Broadcast and Cable 1997) The plaintiffs, who include CNN, The Washington Post, Dow Jones, Times Mirror and Reuters, are upset that the hot links provided from TotalNews to their Web sites display their content framed by the TotalNews home page and its banner ads. Bruce Keller, an attorney for the plaintiffs calls totalnews.com "a parasitic Web site with no content of its own." (ibid) However, TotalNews claims that it is only providing Web users with links to some 1,200 news sources, allowing viewers to compare information from each.
Both of the cases described above have the potential, depending on how they are decided, to call into question the practice of Web site creators providing links to other sites - a fundamental part of Web practice. Attorney Keller, commenting on the TotalNews case said "Hot links either do or don't violate trademarks. That's not new. Framing is new. And framing and selling ads is pretty damn new." (ibid)
While these two cases are proceeding in the United Kingdom and the United States, Australia appears to be the test arena for yet another intellectual property issue in a case which has just been brought before the Australian Federal Court, APRA v. Ozemail. In this case, The Australasian Performing Rights Association (APRA), a body representing composers, authors and publishers of music which licences the public performance of music, has filed a statement of claim against Ozemail, Australia's largest commercial Internet service provider. APRA claims that Ozemail (and by implication, all other ISP's) infringes APRA's members copyrights by transferring music files to subscribers. APRA had previously sent letters of demand to more than 280 Australian Internet service providers last year, requesting a licence fee of one dollar per subscriber. At the time, this would have amounted to a cost of $400,000 to the industry, but, based on the growth in subscriber numbers, would today be in the region of $550,000. (Australian Financial Review 1997) The Internet Industry Association of Australia [HREF 11] is opposing the claim, asserting that its members are not responsible for content, but merely act as conduits. The analogy with telephone companies not being responsible for content will come under scrutiny as well, APRA having brought this action as it awaits an Australian High Court decision in the 1993 case it brought against Telstra, Australia's telephone service, in APRA v Telstra. This is to decide whether Telstra must pay for the "broadcast" of music on hold to its subscribers.
In addition, APRA and AMPAL, another music copyright society, recently demanded the removal of large numbers of music sound files from WWW servers at two Australian universities, alleging copyright infringement. The demands were met, and a number of sites disappeared.(Sydney Morning Herald 1997)
However these APRA cases are decided, they are likely to have a profound influence on views about the nature of transactions on the Web - whether they are transmissions to the public, whether they are broadcasts and what rights are involved. The links with the recent WIPO agreements (q.v.) must be causing the defendants' lawyers some concern.
Internationally, too, governments are being obliged to look to their intellectual property protection legislation through their participation in the World Intellectual Property Organisation Conference. This meeting of 160 governments and more than 80 non-government organisations in Geneva last December (1996) deliberated for 18 days before adopting two new treaties. These were the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty.[HREF12] A third treaty, the WIPO Database Treaty, was not adopted, owing to strong opposition from many bodies.
The key WIPO outcomes, in summary, were:
The rejection of the proposal to include all temporary electronic copies within the scope of the reproduction right. This is a positive result for Web users generally.
A broad right of communication to the public has been given to rightsholders. This is a new right and will have implications for people who want to make copyright material available on their Websites.
The rental right, already protected under the TRIPS agreement, has been limited to commercial rental. This is unlikely to have any implications for the Web, as far as I can determine.
The limitations and exceptions (such as fair dealing, fair use, educational and library exceptions) permitted under the Berne Convention remain largely intact, and it has been confirmed that these exceptions can be extended into the digital environment. This is a positive result for the Web.
Circumvention of technological copyright protection systems and tampering with electronic rights management information will now be illegal. This was a result to be expected. Web users will have to guard against this technology being used to restrict fair access.
Participating countries now have to ratify the new treaties and take steps to make sure that their laws are framed in such a way as to support the treaties. This will take another twelve months or so.
Legislation has to be interpreted by courts. The very newness of the Internet, the World Wide Web and all of the other features of the electronic world present the justice system with a complex set of problems. Traditionally, most legal systems in the world, to a greater or lesser extent, are built on the notion of precedent. Legal systems use a set of earlier decisions from which "rules" can be distilled, these rules then providing guidelines for arriving at a solution to the current issue. The fact that the Internet is so new means that searches for real precedent will be fruitless; lawmakers will have to either develop totally new laws, or have a sufficient understanding of the technology, dynamics and the anthropology of the Internet to be able to devise effective analogies.
Even when courts do make interpretations and judgements which are seen as effective national controls, the Internet presents problems of enforcement. The Web presents us with the capability of transmitting information across national boundaries in microseconds, and jurisdictions are ignored by electrons. Also, questions of rationale and intelligibility of each nation's regulations will affect decisions about reciprocal recognition of judgements and laws.
It is evident then, that there are many developments taking place which will affect the way we use the Web, in fact will significantly change that use. Many of the common practices of Web operation are going to be questioned, challenged, changed, outlawed, charged for, litigated about, and fought over. Administrators, lawyers, judges, politicians - legislators of all kinds - are going to need advice. They will also need to be lobbied. Where better for that advice to come from but the people who know the Web, because they have built it and lived it. If we are to provide proper advice, it's important that we understand the issues. The rest of this paper is devoted to that task; understanding the implications of the WIPO Treaties, the current court cases, and examining some of our beliefs about what we do, and suggesting some rules of operation which will enable the Web to survive and its operators and users to avoid trouble. Without that understanding and effort, the Web could yet become another piece of Victoriana, sandwiched forever between panes of legislation.
Electronic Copies Had the original WIPO article on electronic copies, drafted before the conference, been adopted, it would have meant that all electronic copies, no matter how small or insignificant, regardless of purpose, would have been reproductions in the copyright sense. Even copies made in RAM whilst browsing would have been copyright infringements, unless covered by exemptions such as fair dealing or fair use. However, that article was abandoned, and a narrower agreed statement was adopted, which stated, in part "...the reproduction right...and the exceptions permitted thereunder, fully apply in the digital environment." Another statement was passed by vote: "It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction..." The controversial aspect of this statement is in the meaning of the word "storage". It could be argued that the meaning could be extended to cover temporary storage in RAM, or just as easily argued that it only referred to an activity where the material was stored with some sense of permanence, e.g. on a hard drive. Because of the ambiguity of the statement, it does little to resolve the electronic copies issue one way or another.
At least, at this time, temporary electronic copies have been deemed not to be copyright infringements, and Web users can take comfort from that. However, law and policy makers will need to be reminded from time to time, as the issue resurfaces, that proposals on the significance of electronic copies were rejected at WIPO for good reason, and that economically insignificant copies made in the course of using digital works should not be viewed as yet another source of revenue for copyright owners. The fact that such proposals were extensively discussed and defeated can serve to support arguments that such broad definitions are inappropriate to the working of the Web.
Broad Communication - Make Available to the Public Right The treaties now give copyright owners the exclusive right over all communications to the public, by wire or wireless means. In particular, this now covers the right of making a work available to the public in such a way that members of the public may access that work from a place and at a time chosen by them as individuals. Putting it simply, making a work publicly available online for transmission on demand will be an infringement of copyright. This is something which will have a profound effect on the Web, because it is essentially the way the Web works. How this new right will be met will depend largely on how narrowly the words "to the public" are applied in the legislation and jurisprudence of signatory countries; it is obviously something that Web users will need to argue to limit the impact.
Rental Right An attempt was made at the conference to extend the rental right to include not just computer programmes, but all works in electronic form. This was rejected, and the rental right became a replica of the rental right under the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement. I do not see that this is likely to have any significant effect on the Web at this stage of its development, although it remains to be seen whether a connection between rental rights and the caching and retrieval of Java applets will be established, and how this might affect web builders.
Exceptions and Limitations to Infringement After considerable lobbying and negotiation, it was agreed that all the limitations and exceptions in the Berne Convention would be carried forward into the new treaty. This became article 10, which after stating that the Berne agreement would be carried forward, contains the interesting words "Similarly these provisions should be understood to permit contracting parties to devise new exceptions and limitations that are appropriate in the digital network environment." This is a good outcome, for it means that all current exemptions remain, but also that appropriate new exceptions can be created for the digital environment. This means that copyright owners' claims for digitised material to be treated differently can now be countered, or even rejected, with the strength of the WIPO agreement.
Digital Rights Management Information As described above, the WIPO Copyright Treaty included clauses (Clauses 11& 12) which require member countries to provide adequate legal protection and remedies against (i) the circumvention of technological measures used by rightsowners to protect their rights in the digital environment, and (ii) the circumvention or removal of any electronic rights management information from electronic works. This means that signatories to the convention will be required to pass laws making it illegal to dismantle any copy protection mechanisms, or to remove any electronic identifiers from material distributed on the Web. As these laws are framed, it will be necessary for Web users to attempt to have some input, to ensure that the new laws do not make the technology unworkable - for instance, it could be argued that a photocopier is a device to circumvent copy protection and was thus illegal - and also to scrutinise any legislation to ensure that it cannot be used to restrict access to materials under the fair dealing, education or library provisions of their country's copyright legislation.
[An interesting proposal on a rights management technique, called DARTS (Data Authorization Reproduction Transmission Standards), has been written by Peter Harter, a legal officer for the Netscape organisation. At this stage it is very much in a formative state, but will bear watching. Information can be obtained from Netscape's home page [HREF 13]or Mr. Harter himself. ]
Are URLs copyrightable? It is difficult to imagine, given the preference of courts in Canada, the United States, Australia and Britain for rejecting copyright in short titles and slogans, and the generally prevailing notion that a URL is a fact, facts per se not enjoying copyright protection. However, Lord Hamilton's decision and reasoning remain to be heard.
The TotalNews[HREF 10] case is somewhat different. Here, the plaintiffs have alleged copyright and other intellectual property rights infringements, because the defendant has enclosed the plaintiffs' URLs in frames containing advertising chosen by TotalNews. Under Australian law (and possibly US law), a copyright infringement could be argued if the frames were so designed as to make a user believe that the content was the work of the "framer", as this could be construed as a false claim of authorship. The decision in this case could also have a profound effect on web operation. As it involves URLs, frames, trade marks, and other aspects of intellectual property, the effect could be far-reaching. Both lawyers and members of the judiciary involved in the case will need advice from Web experts. It would be a good move if some respected Web-based organisations such as the Digital Future Coalition, or the Electronic Freedom Foundation could act as amicus curiae in this situation, as this would be the only effective method of input. In this case it will be interesting to see how the law deals with the complex issues of older principles of law and new technology; what analogies will be drawn, and whether the result will help or hinder the development of the Web.
In the Australian (AMCOS) Case, there is little to add to the description above at this stage, except to observe that copyright collecting societies who engage in heavy-handed insistence on their "rights" may in fact do their members more harm than good, as it can be argued that the free availability of sound files and lyrics actually encourages purchases of the legitimate recordings. This free exchange is part of the youth culture, whether copyright owners like it or not, and perhaps should be leveraged rather than litigated against. The attitude of the group "The Grateful Dead" and their lyricist, John Perry Barlow, would seem to bear this out. Music collecting societies might do well to take advantage of, and encourage "fan" websites which generate free publicity for their members by granting the sites limited licences and supplying them with legitimate sound recordings and publicity material.
In spite of the changing technology, the questions recur. Should this new kind of work be copyrightable? Is this new use of an existing work an infringement? What about the fact that people can now make copies in their own homes? How should owners react to the fact that the copies are identical to the original? Professor Trotter Hardy (Hardy 1996) suggests that many of the assumptions we make in response to these questions are either false or misleading; and that we continue to misunderstand the potential of the technology, as we have done with past technologies. He takes as his example some currently widely held beliefs about caching (the practice of storing copies of web pages on local servers) - Hardy calls them "myths" -
1. Caching is essential for the Internet, (it isn't, says Hardy, if either bandwidth is increased or pricing structured appropriately)
2. Caching helps everybody, (it doesn't - caching deprives the site owner of statistics, doesn't enable him to present the latest information)
3. We know what caching is, (technology is changing so rapidly that we may not know any more)
4. "Copy" is an anachronism and no longer applies to exploiting works in the digital world. (there is no proof that "copy" means today what it meant in 1968 or 1909).
Hardy believes that these examples represent a microcosm of current concerns about copyright; that because many of our firmly held beliefs can be shown to be erroneous there is no place for sweeping changes to the law, rather it should be dealt with on a case by case basis, examining each one to determine the advantages of fair dealing or implied licence arguments. He goes on to observe that courts are already discovering that the changing meanings of words like "copy" are allowing them to develop new doctrine that is based not on tangible reproduction, but on notions of controlling access to and use of information - a more useful focus for the intangible, digital world.
This is not to say that all problems have been solved, and that it will be plain sailing from now on, for there are many problems yet to be solved, and not all these will (or should be) decided by the judiciary. The ethics of the community need to be brought to bear on these issues as well, if the Internet and the Web are to serve that community in a way that is responsive to the community's needs. To this end, the participation of the entire variety of users who inhabit the 'Frontier' is needed.
Authors should be paid for their works
Copying is permitted for certain socially useful purposes
The fair dealing clauses try to accommodate the interests of both author and user.
Copyright recognises that access to a work may be restricted, e.g. by not publishing, as a means of respecting privacy.
With these basic copyright principles in mind, Anawalt suggests the following guidelines be followed when dealing with digital on-line material:
1. Give Notice. Include notice of claims of ownership and restrictions of delivery in electronic versions of works posted on the Net.
2. Reasonable compensation. Authors of highly marketable works should keep compensation demands to reasonable levels.
3. Respect Claims. Respect known claims of ownership of electronic postings. Generally, do not retain copies of works which contain no indication of permission by the copyright owner.
4. Transform, Critique or Analyze. Fair use is likely to exist when you transform, critique or analyze a relevant, but limited section of a work.
5. Pay for Use. Obtain permission or pay for a work which you upload or download and use.
6. Respond. Respond to communications which copyright owners direct to you.
7. Computer programs and Games. When downloading an interactive work, such as a computer program or game, restrict your activity to reading or perusal of its contents, unless you have paid for its use.
8. Do not Reformat. Do not convert material into an Internet postable format without permission or clear fair use privilege.
9. Distributors watch for Restrictions. Determine whether likely claims of restricted distribution exist when making matters available for downloading from the Internet.
(Please note that these guidelines are based on United States law, and the situation in other countries may vary. Users should check to see what variations would be created by their own laws .)
Michael M. Lean ©, 1997. The author assigns to Southern Cross University and other educational and non-profit institutions a non-exclusive licence to use this document for personal use and in courses of instruction provided that the article is used in full and this copyright statement is reproduced. The author also grants a non-exclusive licence to Southern Cross University to publish this document in full on the World Wide Web and on CD-ROM and in printed form with the conference papers and for the document to be published on mirrors on the World Wide Web. Any other usage is prohibited without the express permission of the author.
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