The aim of this paper is to examine the copyright issues that relate to the World Wide Web (WWW or the Web) and how those issues are having an impact on the current law relating to copyright in Australia and overseas.
Copyright is the legal ownership of intellectual property preventing the use of the property except as allowed by the owner of the material or by legal provisions. In Australia the copyright of specific types of intellectual property is covered under the Copyright Act 1968 (Cth), and in case law concerning copyright since then. In addition, Australia and the majority of other countries, are signatories to the Berne Convention (1967, 1971 and 1979) which gives copyright protection to intellectual property throughout the world.
In Australia copyright protection lasts for the lifetime of the owner of the material plus 50 years after their death. The law permits the material to be used in certain circumstances and this is covered by the doctrine of fair dealing. This doctrine is designed to allow the material to be used in a limited way for research or study, criticism, reporting the news and professional advice.
The advent of the Internet (and more particularly the Web) has put new pressure on copyright laws. Australia and the US are conducting inquiries into the emerging issues. The very fact of browsing the Web may involve copyright breaches as the material on the page is saved in whole to the user's computer and hard drive -- enabling the user to gather vast amounts of copyrighted material, in some cases without the owner's consent.
The issues include:
Who is responsible for the policing of copyright: Internet service providers (ISPs), authors, government regulatory bodies, or is it to be left up to the user's discretion?
Technology may provide a partial solution to the issues, with hardware and software products to prevent material from being copied, or at least copied only to the extent that it can be readily recognised as having violated copyright.
Should this new medium be treated differently? Or will existing controls be sufficient? In the end, it will be a question of achieving a balance between a user's needs and the needs of authors for control over their works.
Copyright is legal ownership that attaches to specific types of intellectual property. It provides protection to the owner or originator of the intellectual property to ensure the only the owner can receive the benefits from that property. The Copyright Agency defines copyright as:
"... a form of protection for works, such as novels and journal articles which result from the skill of the creator and for other subject matter which results from the investment of a producer, such as a film ..." [1]
In Australia the law concerning copyright is covered in the Copyright Act 1968 (Cth) and in court decisions interpreting the Act since. The Act gives owners of intellectual property the right to sue for damages where the property has been used in a manner against the Act and the wishes of the owner/s .
Not everything is protected by copyright. You cannot protect an idea. You can only protect the expression of that idea. Similarly facts titles, names, short phrases and blank forms cannot be copyrighted.[2]
The types of intellectual property covered by the Copyright Act are as follows:
Thus anything published on the Web comes under copyright legislation as it is seen to be a literary work created by its authors -- to be viewed and used by those who have access to the Web.
In Australia copyright protection varies depending on the type of material. In most cases the duration of protection is for the life of the creator plus 50 years. Once 50 years has elapsed, the material is said to enter public domain where it can be used freely without permission.[4]
The Act allows that "fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work ... does not constitute an infringement of the work" [5] in the following circumstances:
International copyright is achieved by groups of nations agreeing to be bound under an international treaty. Australia is a signatory to the Berne Conventions (1967, 1971 and 1979) so that the same level of protection is available throughout the countries which are also signatories to the treaty. For example if something is first published in Australia it is automatically copyright protected in the US and many other countries. Australia is also a signatory under the Paris Convention (1967) and the Universal Copyright Convention (1971). These conventions further strengthen international responsibilities.
Throughout the ages copyright law has existed (and coped) with technological advances which have made the copying of works easier, cheaper and faster. However, in a digital environment, there are concerns about the ability of copyright legislation to provide protection of intellectual property. According to Post (1995), the theorists are polarised into two schools:
In Australia concerns about copyright law are widespread, with claims that the present Act is "too focused on specific technologies"; [8] that it does not extend protection to new forms of expression (such as multimedia); and that even after reform, "some forms of intellectual endeavour would remain under-protected while others would be over-protected". [9] Complicating matters is the fact that, since Australia is a signatory to the Berne Convention, any reforms to copyright law must not conflict with Australia's obligations under GATT (General Agreement on Trade and Tariffs). [10]
As might be expected Australia is not alone in being concerned with copyright. In September 1995 the (United States) Working Group on Intellectual Property Rights released its "White Paper" on the implications of the National Information Infrastructure (NII) for intellectual property law.
"The "White Paper" ... analyzes the application of intellectual property law to cyberspace and also makes recommendations to Congress for specific legislation...[It stemmed from the fact that] the new technology has changed the ways in which people create, reproduce, and disseminate copyrighted works ... [This] creates challenges in defining such concepts as reproduction, distribution, fair use, and in providing enforcement mechanisms." [11]
In its recommendations, the goal of the White Paper is "to accommodate and adapt the law to technological change so that the intended balance [between copyright owners and users] is maintained." [12]
Since its release, critics have appealed to the US government for changes to the "White Paper": they contend that there are issues that have not been raised, for example contributory infringement, fair use, and the issue of trademarks and Internet domain names.
Chief among the critics is James Boyle who is of the opinion that "In fact, under its bland surface the White Paper is an astoundingly radical measure which makes reading a document on the screen of your Web browser a copyright violation, cuts those who cannot afford to 'license' information off from the information highway and dramatically restricts the 'fair use' of copyrighted material." [13]
Internet service providers (ISPs) feel aggrieved because the "White Paper states that on-line service providers should be held liable -- directly, contributorily, and vicariously -- for their role in the violation of federal copyright law." [14] They are "concerned that their liability may translate into high insurance premiums, or might drive them out of the market". [15]
They argue that ISPs should not be liable for copyright infringement as they are not the authors of web pages, and they are not the ones who are placing pirated/copyrighted material on the Internet. Further, they feel they are only there to provide a service to a customer (just like a telephone company), and they can't be responsible for monitoring all traffic on the network as this would impose on the Privacy Act.
Such is the reality of the digital environment that state and national boundaries have become meaningless. No longer can we feel secure that a "White Paper" emanating from the US has no relevance to the way we use digital technology for work, study or leisure here in Australia. Print technology gave us neat categories with which to define our roles and responsibilities. However, digital technology has brought about semantic shifts to the once-familiar concepts of "author", "publisher" and "copy" and the implications are enormous -- not only for service providers, but for creators, producers and consumers of intellectual property. Some of these include:
For consumers of intellectual property the demand for ready access to information and resources must be balanced with the copyright requirements of owners. As Brudenall (1997) has noted, although present legislation allows that fair dealing for research or study does not infringe copyright, publishers may see this provision of the Act as jeopardising their interests:
"Publishers, particularly those of educational material, believe that in a digital environment students could utilise [the defence of fair dealing] to access, copy and transmit significant portions of their works without fear of infringement, possibly causing irreparable damage to their market." [16]
Whether publishers have cause for so much alarm is, of course, open to debate.
According to the doomsayers (or the realists, depending on one's viewpoint), surfing the Net for study or leisure may also lead to potential infringement of copyright:
"When a person browsing the Internet accesses a web page, she downloads the pictures and text on that page onto her computer. This is necessary to be able to view the material and is done automatically by the web browser software ... By making a copy of this page in her computer's RAM, on her hard drive, and on her screen, the browser violate[s] the author's exclusive right to reproduce the page. " [17]
Scovill (1995) has drawn attention to a difficulty when dealing in an electronic environment: "the authorship, identity and ownership of a work can become less clear because of the collaborative efforts to create it and the multiple inputs to it". [18] Although this could have implications when it comes to financial recompense, the situation does not seem so different from that of "traditional" publishing -- whether it is publicly acknowledged or not, turning a manuscript into a saleable commodity (a book) is indeed a collaborative effort.
Gerdsen (1996) goes a little further than Scovill and brings up the question of moral rights of attribution and integrity:
"The issue of moral rights is likely to become increasingly important with the emergence of digital techniques for copying and transformation of works and the wide dissemination of material possible over the Internet." [19]
In spite of proposals to introduce moral rights legislation (for example, the 1994 discussion paper Proposed Moral Rights Legislation for Copyright Creators) Australian law does not extend any specific protection to moral rights.
In a digital world publishers can lose out on what is for them a value added to their publications and part of their look and appeal to consumers -- design and layout, and typesetting, their tricks of the trade -- particularly for publishers who now enjoy "copyright in the typographical arrangement of a published edition". [20] All that's needed now is to access the pulldown menu and click on View to find Document Source and Document Info:
"On the net, you look at what one publisher has done and can see immediately and painlessly *how they did it*, and you can copy or improve on it. Thus, one's publishing and production methods as well as content can also be copied freely." [21]
As the choice of HTML is still limited, this may not be a concern to all publishers; however, it does not require a stretch of the imagination to consider that, when there is a wider range of HTML from which to choose, publishers may want to keep to themselves the secret of their distinctive publications.
There are many different views of how to police copyright on the Internet. The problem is that it is mainly left up to the author of a site to make sure that his/her work is not copied, manipulated, or distorted in any way. A number of proposals to combat infringement have been put forward:
While the last two approaches are a couple of years in the future, they do provide assured protection.
Just as the move from the spoken word to print on paper necessitated a rethinking of the way we look at the world and our place within it, the increasing use of digital technology in the home and in business challenges us to re-examine our role. When those with a modem and a telephone line can publish their work to a potential market of millions of people around the world (at a the same time bypassing publishers, bookshops and distributors entirely) the old certainties of the pre-digital age seem to be on shaky ground -- what does a publisher do? who is an author? what is a work? how do we fit into the new equation?
In the digital environment, the facility to store, copy, manipulate, search and transmit around the globe vast amounts of information very simply has led to concerns about the ability of present copyright legislation to provide adequate protection of intellectual property. Those who advocate greater protection of intellectual property have put forward a number of technology-based suggestions for recouping payment and preventing infringement of copyright. Those who claim that copyright is an outdated concept see this "as a signal that the new medium should be treated differently from the old." [26] The challenge for us is to find a way of providing access to information without loss of intellectual property and financial recompense for creators.
Australian Copyright Council 1996, Information Sheet #10 An Introduction to Copyright in Australia, [Online], Available from: http://www.copyright.org.au/info10htm, [Accessed 28/8/97].
Brudenall, P. 1997, 'The Future of Fair Dealing in Australian Copyright Law', The Journal of Information, Law and Technology (JILT), [Online], Available from: http://elj.warwick.ac.uk/jilt/copyright/97.1brud/, [Accessed 3/10/97].
The Copyright Agency Limited 1997, About Copyright, [Online], Available from: http://www.copyright.com.au/doc/copyright.html, [Accessed 17/1/98].
Copyright Law Review Commission 1997, Fair Dealing under the Copyright Act 1968, [Online], Available from: http://www.agps.gov.au/customer/agd/clrc/homepage.html, [Accessed 15/1/98].
Donald, John 1997, Copyright on the Internet, [Online], Available from: http://www.best.com/~jdonald/jrd/crweb.htm, [Accessed 20/1/98].
Fillmore, L. 1994, Internet Publishing in a Borderless Environment: Bookworms into Butterflies, Notes for the Presentation at the Electronic Media Conference at the Frankfurt Book Fair, Frankfurt, Germany, October 7 1994, [Online], Available from: http;//www.obs-us.com/obs/english/papers/butter.htm, [Accessed 3/10/97].
Gerdsen, T. 1996, Copyright: A User's Guide, RMIT Press, Melbourne.
Johnson, David R. 1994, Rewarding Authorship in Cyberspace: Is Intellectual Property the Answer or the Problem?, [Online], Available from: http://www.eff.org/ pub/Intellectual_property/, [Accessed 6/10/97].
Lee, M. & Kerr, D. 1994, Proposed Moral Rights Legislation for Copyright Creators, Commonwealth of Australia, Canberra.
Lehman, Bruce, Baker, Jonathon D. & Obion, Michael A. 1996, Intellectual Property and the National Information Infrastructure (The White Paper), [Online], Available from: http://roscoe.law.harvard.edu/courses/techseminar96/course/sessions/whitepaper/whitepaper.html, [Accessed 20/1/98].
Office of Regulation Review 1995, An Economic Analysis of Copyright Reform, Commonwealth of Australia, Canberra.
O'Mahoney, Benedict 1995-1997, The Copyright Web Site, [Online], Available from: http://www.benedict.com, [Accessed 17/1/1998].
Post, David G. 1995, 'New Wine, Old Bottles: The Case of the Evanescent Copy', American Lawyer, [Online], Available from: http://www.eff.org/pub/Intellectual_property/ [Accessed 6/10/97].
Scovill, L. 1995, Librarians and Publishers in the Scholarly Information Process: Transition in the Electronic Age, Association of American Publishers, Washington, DC.
Weiner, Robert S. 1997, Copyright in a Digital Age: Practical Guidance for Information Professionals in the Midst of Legal Uncertainty, [Online], Available from: http://www.onlineinc.com/articles/onlinemag/weiner975.html, [Accessed 20/1/98].