Theft by many other names

January 12, 1996

In the second of four articles on Internet law, Andrew Charlesworth urges all Web masters to learn the intricacies of copyright law as it applies to their ser Any discussion of electronic publishing will now include the role of intellectual property. It is probably the single largest problem facing electronic publishers and those who hold, and wish to protect, those intellectual property rights (IPRs).

One of the major debates surrounding the concept of the information superhighway has been the extent to which the existing concepts of intellectual property can serve a useful purpose in the electronic environment.

The simplicity and speed with which data can be transferred and manipulated by computer is often in stark contrast to the confusion, complexity and effort which accompanies the IPRs relating to the same data. As those engaged in the Teaching and Learning Technology Programme multimedia work will have discovered, often more effort is expended in obtaining IPRs than on any other part of the project. This underlines one of the major problems with IPRs and digital technology: it is a difficult and time-consuming task for individuals to remain within the law, but extremely simple and not particularly risky for the law breaker to download and copy electronic versions of literary, artistic, musical and cinematic works.

Copyright is a particularly complex subject. It began life in the 1600s as a monopoly right for printers, and is now expected to cover material as diverse as artistic works and computer programs. The wide range of media which copyright law covers has led to a diversity of types and lengths of protection (see Sidebars), with which Web page creators and Web server owners would be advised to acquaint themselves.

In broad terms, there is a copyright infringement when an individual copies a work held in electronic format without the authority of the copyright holder. Such infringement is widespread in Usenet newsgroups that carry pictures (notably those of supermodels or actresses), where it has been estimated that between 95 and 100 per cent of the pictures are infringing copyrights. Similarly, in theory at least, electronic mail messages, as literary works, are the intellectual property of their creators. Copying them in whole or in part, without the permission of their author, is technically a breach of copyright, but there is often little more than lip service paid to this.

Section 107 of the Copyright, Designs and Patents Act 1988 states that where an individual sells, hires, exhibits, or distributes an infringing copy of a copyright work in the course of a business, or distributes "otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright," an offence will be committed. It is clear that this would catch individuals who attempt to sell infringing electronic media such as computer programs or pictures over the World-Wide Web. What is less clear is the situation regarding an individual who simply places infringing material on a Web server where it can be copied by others.

Much turns upon the interpretation to be placed on the word distributes; a broad concept would appear to cover virtually all situations where infringing material is placed on an open access Web server; a narrower interpretation would require that the individual placing the material on the open access Web server perform some action other than to simply provide a facility for illicit copying.

There are three important copyright issues relating directly to aspects of the Web itself. It would seem that the actual layout of a Web page, as distinct from its content, would be capable of protection as a published edition, in that there is copyright in the typography and layout of a work. Thus to copy the layout of a Web page, something that the browser technology makes very easy, is potentially an infringing action.

Another unresolved question concerns a Web server which does not contain any infringing material, but which has links to sites that do. Does the owner of that Web site incur any liability with respect to the infringing material by virtue of providing links which users can follow to that material?

Finally, there is the issue of caching. One of the solutions to the slow Web link times, especially to transatlantic Web sites, has been the development of various levels of local storage of copies of resources held on remote sites. At the simplest level, this may be storage of visited Web pages on a user's PC.

At a somewhat higher level some sites, such as HENSA in the United Kingdom, automatically cache large numbers of Web pages from other sites. Users can set their browsers to check if pages are cached at the local site before attempting to access the original. A possible problem arises out of this clever workaround, in that the CDPA 1988 states that rights exclusive to the owner of a copyrighted work include its reproduction in any material form, and that this includes storing the work in any medium by electronic means.

Whether this apparent infringement of intellectual property rights will affect the use of caching technology remains to be seen. Web sites with "revolving" commercial advertising - where each time a Web page is accessed a new advertisement is seen - may see caching as a threat to their future viability, although apparently it is possible to add code to a Web page which in effect tells a cache that the owner of the page does not wish it to be cached.

Many companies have symbols and logos which they have protected by registering them as trademarks. For example, Windows, MS and MS-Dos are registered trademarks of the Microsoft Corporation. Many firms are unwilling to let individuals use trademarked logos on Web pages or elsewhere unless permission is given and the logo is stated to be a trademark of the holder.

A recent development is the controversy over the allocation of domain names. All Internet sites have identifiers known as domain names and these usually contain the name of the organisation which runs the site, as in "www.hull.ac.uk" or "www.microsoft.com". The controversy lies in whether domain names are, or should be, subject to trademark law. In the United States Adam Curry, a former MTV video jockey, is engaged in litigation with the music broadcaster over whether he can use the domain name "mtv.com". Some companies have registered domain names containing their competitors' names or brand names, and individuals have registered domain names containing the names or brands of major firms for a financial interest.

Ignorance of any copyright infringement is no defence. However, to be found liable as a secondary infringer, there must be evidence that the individual knew or had reason to believe that the infringement was taking place. Whether a higher education institution can be liable on either a primary or secondary basis will depend largely on how it structures its Web policy.

As with other liability issues, such as those surrounding defamation, the first line of defence for an education Web site is to ensure that those creating Web pages are aware of the relevant law and their obligations under it. Those creating both institutional and personal Web pages should be informed that breach of another's intellectual property rights will be a breach of the institution's code of practice and subject to internal disciplinary procedures.

The responsibility for ensuring that infringing material is not used should be transferred to the individual Web page owner, with the guideline that if the individual cannot trace the ownership of the IPRs in an image or other material, and then obtain permission for its use, it should not be used. As with defamatory statements, there should also be a clear and rapid procedure for removing alleged infringing material from institutional machines, until its legitimate use can be verified.

On a more practical basis the owner of a Web site would be advised to have some form of access counter for Web pages, so that an those which suddenly receive an unusually high level of access hits can be checked for content. It would be sensible to consider which, if any, of the Usenet groups which carry images are necessary for higher education and should be carried.

Andrew Charlesworth is director of the Information Law and Technology Unit at the University of Hull Law School. He is studying legal issues relating to the use of Web technology at higher education sites, funded by the Support Initiative for Multimedia Applications, part of the JISC New Technologies Initiative. He can be contacted at a.j.charlesworth@law.hull.ac.uk.

*There is a mailbase e-mailing list for the discussion of IPRs and new technologies entitled law-ipr. To subscribe send the following message in the body of your e-mail (leaving the message header blank):

subscribe law-ipr (yourfirst name) (yourlastname)

addressed to:

mailbase@mailbase.ac.uk

What can be copyrighted?

Literary works - not only novels, poetry and non-fiction books but also all sorts of other written works which are original. Literary merit is unimportant. This means that letters, memoranda, directories, email messages and Web pages may be protected.Computer programs and code are protected as literary works.

*Dramatic work - plays and instructions for dance or mime. There must be some spoken words or described actions to perform to distinguish a dramatic work from a literary work. However the fact that a play does not contain any dialogue does not prevent its qualification as a dramatic work.

*Artistic works -graphic works, photographs, sculptures, collages, maps, charts and plans. Protected regardless of artistic merit. However, works of architecture and of artistic craftsmanship require artistic quality to qualify for protection.

*Musical works - musical scores including any annotations and directions. Lyrics are protected as literary works.

*Sound recordings - every type of sound recording on any type of medium from which sounds can be reproduced.

*Films - any medium from which a moving image may be reproduced. As the definition of film under the 1956 Act was similar video recordings appear to be covered from the time of their development.

*Broadcasts - any transmission by wireless telegraphy which is capable of lawfully being received by the public. This clearly therefore includes satellite transmissions.

*Cable programmes - transmissions carried as services via cable, including on-line services.

*Published edition - there is copyright in the typography and layout of a literary, dramatical and musical work.

How long do the rights last ?

All works will eventually emerge from copyright protection. However, different types of works have different lengths (or terms) of copyright protection. Also despite the role played by international agreements such as the Berne Convention, different countries apply different lengths of copyright protection to works. The CDPA 1988 made changes to the length of protection for various works but, as it did not apply retrospectively, it remained necessary to be aware of the relevant provisions in the 1956 Act and the 1911 Act.

The CDPA 1988 was in turn amended by Directive 93/98/EEC which, as of last July, harmonises the basic term of copyright in the EC by extending it to 70 years. It appears that this will have retrospective effect, which will mean that some material which has fallen out of copyright in the UK will be, as it were, recopyrighted. It is unclear as to how this may effect those who have acted in reliance on the material being out of copyright. Following the implementation of that directive in the member states, a provision of GATT will restore copyrights on a number of foreign books, paintings, films, photos and sketches that are in the United States public domain. The rule, in effect from January 1, will apply to works still protected by copyright in the country of origin.

There are still however variations and exceptions in UK law, a particularly irksome one being Crown Copyright, which can be longer than normal copyright term, and which, at present, is the reason why, unlike, the citizens of US, Canada and Australia, British citizens cannot access national legislation without cost on the www.

Period of protection

*Literary, dramatic and musical works - the author's life and 70 years after his/her death. (amended by Directive 93/98/EEC)

*Works of joint authorship - 70 years from death of last author to die. (amended by Directive 93/98/EEC)

*Artistic works - the author's life and 70 years after his/her death. (amended by Directive 93/98/EEC)

*Anonymous works - 70 years from first publication. (amended by Directive 93/98/EEC)

*Films - 70 years from the death of the last to survive of the principal director, the author of the screen play, the author of the dialogue and the composer of the music specially created for the film. (amended by Directive 93/98/EEC)

*Sound recordings - 50 years from first publication, but 50 years from fixation, if unpublished during that time. (amended by Directive 93/98/EEC)

*Broadcasts and cable programme services - 50 years from when broadcast first made or programme included in a cable service. (unchanged - as per the CDPA 1988)

*Computer-generated works - 50 years from first creation (unchanged - as per the CDPA 1988)

*Published editions - 25 years from first publication of that edition. (unchanged - as per the CDPA 1988)

*Publication or communication to the public of a previously unpublished literary, dramatic or musical or artistic work or film in which copyright has expired - 25 years from first publication. (introduced by Directive 93/98/EEC).

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