Control and exploitation of copyright material online

This article was written by John MacKenzie, a partner with Pinsent Masons, and it first appeared in 2001 in E-commerce Law and Policy. It has not been updated since.

The growth of the internet is perhaps the most conspicuous example of the law failing to adapt with sufficient speed. There are a number of well known myths about the law on the internet, and in particular the law of copyright. These include:

• "If it doesn't have a copyright notice, it's not copyrighted"
  
• "If I don't charge for it, it's not an infringement"
  
• "If you don't defend your copyright you lose it"
  
• "Somebody has that name copyrighted"
  
• "They can't get me, defendants in court have powerful rights"
  
• "It doesn't hurt anybody – in fact it's free advertising"
  
• "If it's posted to Usenet it's in the public domain"

While courts in many countries have been willing to intervene where there has been an infringement of copyright, the real difficulty for the owners of copyright is the sheer scale of the internet, and the speed at which reproduction of material can be achieved.

The simplicity of copying material found on the internet has fuelled the myth that there is nothing wrong with doing so.

Copyright law first developed at a time when it was relatively difficult to make copies of written work. Large scale copyright infringement could only be achieved if the infringer had substantial industrial backing in the form of a printing press and time.

The advent of the photocopier posed the first real test of modern copyright law. Then came home audio recording, video recording, and the computer, which needs to copy material in the form of computer files and code just to operate.

With the internet, where many computers are linked together, there is no need for an infringer to have serious financial backing. This is especially so where the "original", whether text, picture, video or sound, is in digital form. There is no longer a physical original that could be the ultimate point of reference. It may now be almost impossible for the courts to identify "the" original work. Infringers can also take advantage of the internet as a communication and publication network. The challenge for copyright holders has never been greater.

The legal remedies available to copyright owners are reasonably straightforward. Copyright gives the owner the right to prevent others from copying the product. It protects the form of reproduction, not the ideas themselves, and so will only arise in relation to original works involving some degree of skill, effort and judgement.

The law of copyright is contained in the Copyright Designs and Patents Act 1988.

Copyright covers a very wide range of subject matter including books, films, videos, plays, music and drawings, all of which can make it onto the internet in some form or another. Computer software is protected as a literary work, and the databases which now form the backbone of many sites are now protected following the Copyright and Rights in Databases Regulations 1997.

Unlike the US , Europe has no registration process for copyright works. Once the work is created, copyright exists. Copyright prevents the reproduction of the copyright work in any material form, the making of any adaptation of the work, the making of a translation of the work or the publishing of the work without the consent of the copyright owner.

In the event of an infringement, the copyright owner can apply to the court for an order to prevent the act that is taking place – known as an interdict in Scotland and as an injunction elsewhere. The Act also allows for an order to be granted for the infringer to "deliver up" the offending articles and, in certain circumstances, payment of damages. In the event that the act is identified and the infringer located, in Scotland certainly there are effective remedies.

However, the power of the internet should not be underestimated. It has been described as a "running rhizome". For those who are not botanists, a rhizome is a plant that spreads through underground roots. The most invasive example is the running bamboo. There are many different species of bamboo. In general, however, one can divide bamboos into "runners" and "clumpers". The clumpers don't invade. To remove a clumper, you need to just dig it out. Runners can, in the right conditions, become a serious problem. To prevent a running bamboo from spreading, a "rhizome barrier" is essential. A barrier two or three feet deep is effective. This is because the plant feeds off the other parts of the root system. Cutting off stems will not prevent further growth, and only isolation will effectively kill off the plant.

There are two main attributes which make the internet like bamboo. Firstly, the principle of connection, which means that any point in the system can be connected with another. It is anti-hierarchical, because no part is stronger or more powerful than another. Secondly, there is no centre, no "heart" in the rhizome. Each way into the structure is an equal way in.

The analogy can be taken further. The rhizome will not flourish where conditions are not right. Similarly the internet. In "hot-spots" like commerce, the internet will be encouraged. If a demand is identified then the internet will flourish. So it was with pornography and travel. Equally, if particular factors combine, this will produce extraordinary growth. This happened when music files were created in MP3 format, and then Napster was born. In months, over 50 million people were using a service which on the face of it appeared to promote copyright infringement. The users were making the infringing MP3 files available from their own computers at no charge. The company behind Napster argued it was only an intermediary. This posed new challenges for copyright law. As the legal action continues, Europe passed the new Copyright Directive to close Napster-type loopholes.

However, even new laws and the threat by the US courts of closing down Napster will not kill off this type of copyright infringement. In Gnutella there is a new form of copying. It differs from Napster in two important ways. First, it allows users to swap any type of file, while Napster only lets users swap MP3 music files. This has raised the concern of the Motion Picture Association of America ( MPAA ) because movies can be exchanged as files – albeit very large files. Second, Gnutella is decentralised, meaning there is no central server that users access to find what files they can download from other users. This means that there is no server to shut down and nobody to sue but the users themselves – or possibly ISP s.

The MPAA is said to have sent hundreds of letters to major ISPs and universities, warning them that people on their networks are breaching the US Digital Millennium Copyright Act ( DMCA ) by trading movies through Gnutella.

Under the DMCA , an ISP must take action when it has "actual knowledge" of an infringement (by facts brought to its attention or by notice from the copyright owner), but it does not impose a burden on the ISP to monitor or discover infringing behaviour.

However, while monitoring of file transmissions is possible with the Gnutella system, a bigger threat to copyright owners lies in Freenet. Freenet is free software similar to Gnutella, but the identity of Freenet users and the files they transfer are said to be impossible to identify. Accordingly, it may be impossible for bodies like the MPAA to present any evidence to ISP s that their users are in breach of copyright laws. If the infringer cannot be found, then the publication of infringing material will continue.

There have been a number of attempts to counter the threat through use of new technology. DVD s were encoded to try and prevent copying, although the code was broken and the method revealed on the internet.

RealNetworks, best known for its RealPlayer software, has developed new technology intended to promote the legal use of copyright material over the internet. The company is aiming the software in its RealSystem Media Commerce Suite at media companies and retailers that want to deliver music, movies and other copyright material securely over the internet.

Included in the new system are applications that help prepare content for streaming and download delivery, authenticate and secure licenses, and provide a recovery tool for lost licenses. The system is said to be compatible with other digital rights management systems, enabling support for an array of business plans, including subscription-based delivery, video-on-demand and rental.

Microsoft has also developed systems which seek to track the registration of their new "XP" operating system, although this has not been without controversy.

These initiatives all demonstrate the pace at which technology is developing. The essential aspects of the law remain the same, although there remains the persistent problem of territorial limitations. To return to the bamboo analogy, the internet is invasive, and crosses all boundaries. A legal jurisdiction is limited to that particular territory. A court in one jurisdiction cannot effectively stamp out infringement in another. Until a way is found of allowing the law to follow the infringement, the internet will remain as a living organism to be encouraged or contained as technology permits.

Contact: John MacKenzie / 0141 248 4858