Copyright Law and Technological Advances - Essay Example

Copyright Law and Technological Advances Sophistication in technology and development of software techniques have made it easier to access vital databases via the Internet. Hackers are now able to change the content of databases and reorganise them. Moreover, software piracy has proliferated to a great extent, due to latest tools that are easily available. At this juncture, it is very important to protect the rights of owners of such software or any other form of creative work. It is the copy right law that provides such protection. This law protects the creativity of any work1. In the context of the Internet, copyright law operates in such a way that the interests of the genuine owner of creative works, and the rights to the public to access such works are balanced. Hence, protecting creativity in the context of the Internet implies the promoting of intellectual development. In the absence of such protection for intellectual creativity, public access to information would be restricted. Hence, copyright law has to provide sufficient protection to copyright owners and also restrict the infringements that take place on the internet. Damages for such infringements have to be compensated to the owner of copyrights2. The infringements of copyrights are increasing in number, due to the rapid expansion of the Internet. The relevant legislation has not kept apace with this proliferation of the Internet. It remained static and was unable to cope with the new and innovative methods of infringing copyrights3. The Internet is a gateway for transferring information all over the world. Anybody can send and receive information by providing impersonated identification or anonymously. In the same manner, hackers and other cyber criminals can infringe copyrights by operating anonymously. This makes it impossible to trace these cyber criminals. Hence, copyright owners have resorted to suing the Internet Service Providers or ISP’s for breach of their copyright by the subscribers of the ISPs, due to the absence of any other suitable mechanism to remedy the situation4. There is a mutual consensus between the World Trade Organisation or the WTO and the World Intellectual Property Organisation or the WIPO under which the WIPO will provide cooperation to the WTO to implement the TRIPS or the trade-related aspects of intellectual property rights. The WIPO and the WTO are playing a key role in providing guidelines to the third world countries in order to make them comply with the provisions of the WTO Agreement of Trade-Related Aspects under the TRIPS5. The fundamental objective of the WIPO is to provide adequate protection to worldwide intellectual property rights. The WIPO also guarantees administrative cooperation between the intellectual property rights agreements6. The WIPO is a branch of the United Nations. It has sponsored a number of important conventions that address intellectual property rights. The important international conventions that deal with copyrights are the Berne Convention of 1886, the Universal Copyright Convention of 1952 and the Rome Convention of 1961.The Berne Convention provides protection to only authors and films and it does not deal with computer software and databases7. In the year 1996, the WIPO had instituted the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty to deal with the rapid changes relating to intellectual property rights. Authors, actors and producers of creative works can now exhibit their works in public, over the radio, the television or the internet. These new Treaties provide them with extensive protection against infringements. The problems that arose due to the non – inclusion of software and databases in the Berne Convention is now taken care of by these Treaties. Moreover, the Universal Copyright Convention sets out the minimum requirements, in respect of the protection to be afforded for the rights of authors in countries, which have trade agreements with the country in which the author lives8. The signatories to the WIPO must ensure that the authors are provided with the necessary legal remedies and adequate protection. In the event of any infringement the authors can enforce their intellectual property rights. The measures provided by the WIPO require general interpretation by the national courts and these signatories will have the opportunity to implement these measures in a manner that is convenient to them9. The Berne Convention empowers copyright holders to permit their work to be reproduced in any manner that they deem fit10. In respect of digital copies that can be stored in computer memory, the WCT clarified that such copies were to be treated as reproduction, in accordance with the provisions of the Berne Convention. Hence, their reproduction is to be authorized by the person who holds the copyright. However, certain kinds of reproductions, of copyrighted material, do not require any such authorization from the copyright holder11. A test involving three steps was devised by the Berne Convention, in order to identify situations, wherein it would be desirable to permit reproduction of copyrighted material, without authorization from the copyright holder. Accordingly, countries that are a signatory to the Berne Convention, can sometimes allow the reproduction of literary and artistic material; if there is no conflict with the common use of such work; and if such reproduction does not cause any undue harm to the interests of the copyright holder12. It has been opined that this three step test is adequate for consistent application in this changed scenario. The TRIPS Agreement extended the scope of this three step test and consequently it has become applicable, not only to making reproductions of copyrighted material, but also to the other rights, which the Berne Convention has recognized13. In the context of reproducing copyrighted material, different legislative approaches have been adopted by the countries of the world. The Member States of the EU permit its citizens to make copies for non – commercial use domestic use. Moreover, a levy is imposed on private copies, by means of a remuneration right and not through any exclusive right of the author of copyrighted material. To this end such levies are imposed at the time of sale of material required for such reproduction. The amounts so collected are distributed to copyright holders on the basis of a sampling method. This system constitutes one of the methods of countering copyright infringement14. The extant law in the United States of America is based on the concept of fair use. The Copyright Act of that country permits individuals to utilize creative content, without having to make any payment and without any authorization; provided, the rights of the copyright holder are not unjustly compromised. In the process of determining fair use, the following factors are taken into account. First, whether the use is for commercial purposes or non – commercial purposes, like use in the classroom or for academic research. Second, the copyrighted material’s nature. Third, the extent of the copied work, in relation to the original work, both qualitatively and quantitatively. Fourth, the outcome of such reproduction on the value of such copyrighted material15. An infringement of copyright can be done either by an intentional act or through authorisation. Moreover, if goods are imported or sold in a country, where the manufacture of such goods by the importer would constitute an infringement of copyright, then such import or sale would be deemed to be a copyright infringement16. The government of the United States is planning to counter attacks by hackers on databases and attacks on websites by denial – of – service methods and other spyware. It aims to do so, by enacting two specifically developed laws for this purpose. These proposed acts are the RICO Act and the Internet Spyware (I-SPY) Prevention Act. These acts will help federal prosecutors to prosecute cyber criminals. Moreover, Computer intrusions will fall under the scope of the RICO Act17. The Symantec Corporation’s information revealed that nearly thirty percent of cyber crimes had originated in the United States. China occupies the second place with ten percent of malicious internet activities. Bots constitute a new genre of threats for computer data security. Bots are malicious software programs, which, upon intruding into a system, clandestinely, assume overall control of a susceptible PC. Such attacks place the affected computer at the disposal of the author of the malicious software. Using bots, an attacker can control hundreds of computers at the same time18. Attackers plant networks of bots in vulnerable PCs connected to the internet and steal the passwords of the users. They also steal online banking particulars of these computer users. Organized cybercriminals can control websites and exercise denial – of – service distortion schemes. In a very recent incident, Russian cybercriminals blocked the websites of Estonia and launched denial – of – service19. Peer to Peer sharing or P2P sharing was promoted by the website Napster. It had implemented a software programme that enabled the transfer of MP3 music files between users. In a very short period of time, this file sharing became very popular all over the world, among millions of internet users. The P2P software established networks through which individuals could search the entire network for MP3 music files in digital form. P2P sharing proved to be a more serious threat to the music industry than the earlier modes of illegal copying. One of the chief reasons for the popularity of this phenomenon was that there was no loss of quality in these copied files. The introduction of CD burners made it very easy to copy these digital files on to a CD. The cost of CD burners was very cheap and they were easily available in the market20. The other advantage provided by the P2P technology is that a user can search for his favourite song in the entire network and download the same in a few minutes. This method was most favoured by users as there was no cost involved and there was always the availability of a large number of songs on the network. There was no need for users to buy legal copies of the music. Furthermore, users could download just the songs they wanted, without having to buy the entire album of the artist for one or two favourite songs. Thus, P2P file sharing was an innovative and unique technique, compared to the previous methods for copying music files. Previously, individuals could obtain a copy of the music they wanted from their friends or relatives. They were restricted to a single group of providers and the copying was of a low quality. All this changed with the advent of P2P file sharing, which truly revolutionised the sharing of music21. Recording companies such as A&M initiated legal action against Napster for having contributed to the infringement of copyrights of music recordings under the US Digital Millennium Copyright Act22. Napster had established a centralised search engine which could be used to search music files in its subscribers’ computers or servers. In this way it had distributed the music to its subscribers freely over the internet. However, Napster did not carry out its activities along commercial lines. It had never received any funding from anyone for its service23. Subscribers of Napster had to download and install the software provided by Napster, free of cost. A computer folder was to be created on the computer’s hard disk drive to store the downloaded music. This folder could be accessed by other subscribers. Napster added the titles of music files to a centralised library; which subscribers could search for the song of their choice. After locating the song they could download it from other subscribers’ folders. Napster did not maintain a database of music songs in its website, but transferred the requests to the computers where the required music was available. The files were then transferred from one subscriber to another. In this manner Napster freely distributed MP3 songs over the internet24. The District Court decided against Napster which appealed in the Ninth Circuit US Court of Appeals. This Court held that Napster had the capacity to stop infringing activities and hence it upheld the decision of the District Court. The District Court instructed Napster to watch over the activities of its networks and also instructed it to block infringing activities. Napster could not function in accordance with the court’s order, and closed down its website and service in July 2001. In the year 2002, Napster declared itself bankrupt and sold away its assets25. The ruling of the Supreme Court of the US in the case of Sony Corporation of America v. Universal City Studios Inc, stated that makers of innovative and creative technology need not shoulder the responsibility to prove infringement of copyright, if such technology was found to be having the nature of infringing usage26. The court had found that a video cassette recorder was infringing and provides for timeshifting. Under this new provision of timeshifting, an individual can record the broadcast and view it at his convenient time. The court did not take into consideration the number of users used for non – infringing usages, but it considered the nature of the product that has the capability of infringing the copyrighted material. Therefore, the courts consider the very nature of an innovative product, which cannot be protected by the copyright of the owner of the creation. Therefore, the underlying objective of using copyright is to develop an innovative and creative work. This principle should not hinder the development of other innovative works such as P2P technologies or video cassette recorders. It is clear from this that new technologies should not be made subjected to legal barriers on the grounds that they could possibly provide infringing applications, which would eventually violate existing copyrights27. The Napster case and the Betamax case had given rise to a new threshold test for predictable infringements. In case a technology provides both infringing and non – infringing uses, the knowledge of proposed infringing activity is not sufficient to prove contributory negligence. Subsequent to the Napster case, it was established that contributory negligence must be faced with the ability to restrict breach of copyright. Users of new technologies are said to be contributing to the infringement, due to the provision of such facilities by the creator of the technology. Moreover, users have the capacity to stop these violations. This means provision of facilities is not enough to establish violation of copyright28. In 2001, MGM and others from the music and film industry initiated legal action against Grokster, Morpheus and MusicCity. The plaintiffs sought for an injunction order to cease and desist the defendants from their infringements. The plaintiffs also claimed compensation for damages caused by the infringement activities of the defendants. The plaintiffs argued that the defendants were liable for direct copyright infringement, due to their deliberate and systematic provision of such services to their subscribers, which had resulted in copyright infringement. Moreover, the defendants had actual and constructive knowledge of the infringement activities done through their networks29. There have been two problems with initiating action against the defendants, regarding the activities of the users of the services provided by the defendants. First, there were jurisdictional barriers and second, the network could be operated without any initiation by the defendants. Therefore, closing down the Kazaa would not resolve the problem of infringement of copyright by the users. Under the issue of jurisdiction, the defendants argued that the court did not have jurisdiction in the case. However, the court ruled that California had significant users of their services and the injured party had business interests in California, and hence the court did have jurisdiction. The invoking of jurisdictional matters by the defendants was of significance to the defendants, because their services were distributed across the world. The defendants had intentionally established the networks to avoid the jurisdiction of US courts. The US District Judge Steven Wilson ruled that it was not possible to close down the P2P file sharing websites such as Groakster.com and StreamCast, just because they were used by the public for sharing copyrighted material. This ruling was a land mark decision in the context of the music and film industry30. The 1998 Digital Millennium Copyright Act or DCMA of the US and the Information Society Directive of 2001 of the EU are the chief statutes for implementing copyright. These pieces of legislation deal with matters, like permitting temporary duplication by suitably interpreting and modifying the pertinent exceptions and reproduction rights. In addition, the concept of making available was introduced and in online transmissions, the exhaustion doctrine was discarded. Moreover, their provisions were made in the context of anti – circumvention and the extent of liability of intermediaries were also addressed31. The propagation of internet and the sophistication of computer technology paved the way to the development of international cyber crime. Cyber terrorists have no national boundaries and they can target any country virtually. In the wake of widespread cyber crime, all nations are required to enact new legislations that attempt to contain criminal activities over the internet. Cyber crime entails new types of attacks on national databases. Therefore, the nations of the world have also to enact new types of legislation, which can effectively address this problem. Laws that are limited by national boundaries cannot deal with the continuously growing cyber crime. Moreover, national economies depend on internet based commerce and trade. E-commerce has no national boundaries; and the existing laws apply within the nations, in which they were enacted. This situation facilitates cyber criminals to circumvent these national legislations. The internet has created a virtual cyber world, where the laws based on territorial boundaries do not apply32. At all times, it is essential to maintain an equitable balance between public interest and the copyright holders’ rights. The difficulties that arise from the Internet are very complex and it is futile to expect copyright legislation, regardless of its comprehensiveness, to address all of these. These issues are not merely legal in nature, but also have a social connotation. The unprecedented proliferation of the internet has rendered the extant domestic and international legislations deficient in addressing copyright infringements. The individual nations are expected to resolve most of these problems. The US and the European Union or the EU have taken the lead in this area, and their initiatives in preventing copyright infringements are worthy of emulation by the other nations. Moreover, it must be borne in mind that despite their legal structures having a number of significant differences, they have made their mark in this field. Bibliography A&M Records Inc. v Napster Inc. 114 F. Supp. 2d 896, 921 (N. D. Cal. 2000). Ari Staiman, ‘Shielding Internet Users from Undesirable Content: The Advantages of a PICS based Rating System’, 20 Fordham International Law Journal p 866, 874, 1997. Article 3. Part I – General Provisions and Basic Principles. URUGUAY ROUND AGREEMENT: TRIPS Article 9(1), Berne Convention for the Protection of Literary and Artistic Works. (1979). WIPO Article 9(2), Berne Convention for the Protection of Literary and Artistic Works. (1979). WIPO. Article 11, WIPO Copyright Treaty. (1967). UN. Article 13, TRIPS Agreement. (1994). WTO. Bryan Mercurio, ‘Internet Service Provider Liability for Copyright Infringements of Subscribers: A Comparison of the American and Australian Efforts to Combat the Uncertainty’, 2002, Murdoch University Electronic Journal of Law, Volume 9, accessed 1 April 2008 Campbell, D. (2007. P. I/59). The Internet: Laws and Regulatory Regimes [2007] – I. Lulu.com. ISBN: 1430320427. Chissick, M., & Kelman, A. (2002. P. 140). Electronic Commerce: Law and Practice. Sweet & Maxwell. ISBN: 0421764309. Digital Millennium Copyright Act 1998 Ficsor, M. (2002. P. 536 - 537). The Law of Copyright and the Internet. Oxford University Press. Guy Douglas, ‘Copyright and Peer-To-Peer Music File Sharing: The Napster Case and the Argument Against Legislative Reform’, accessed 2 April 2008 Luke O’Brien, 06.04.07, ‘Stiffer Cyber Laws to Crack Down on Botnets, Spyware’, accessed 1 April 2008 MGM v Grokster et al, (U.S. Dist, 2003) 243 F. Supp. 2d 1073, 1093-4. Manish Lunker, ‘Cyber Laws: A Global Perspective’, accessed 1 April 2008 Section 107. Copyright Law of the United States. (October 2007). Sony Corp. of America v Universal City Studios Inc. 464 U.S. 417 (1984) 17 U.S.C. A&M Records. Inc. v. Napster. Inc. 114 F. Supp. 2d 896 (N. D. Cal. 2000). WTO and WIPO join forces to help developing countries meet year-2000 commitments on intellectual property. July 21, 1998. accessed 1 April 2008 Read More