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LEGAL ISSUES RELATING TO THE DEVELOPMENT AND USE OF WORLD WIDE WEB TECHNOLOGY AT EDUCATIONAL SITES

Intellectual Property

Electronic publishing, whether it takes the form of information distributed by CD-ROMs, a WWW server, or some other form of on-line provision, will inevitably raise a number of issues with regard to intellectual property rights. Of all the legal issues examined here, it almost certainly constitutes the single largest area of contention facing electronic publishers, and, of course, those who actually hold, and wish to protect, intellectual property rights in relevant material.

As multimedia publishers have discovered, the process of obtaining IPRs in materials for a package may be more time and resource consuming than any other part of the project. This highlights the paradox inherent in the relationship between the existing IPR regimes, and digital technology; that it can be a difficult and resource intensive task for an individual to ensure their compliance with the law, but an extremely simple matter, and one with little risk of penalty, for the law breaker to download and copy electronic versions of literary, artistic, musical and cinematic works.

This paradox has led to extensive discussion of the role and future of existing IPR regimes in relation to the proposed broadband digital networks, or "Information Superhighways" currently in fashion amongst governments(13). So far, however, these discussions appear to have failed to provide any significant impetus for change against the inertia of existing national and international regimes.

Copyright and Associated Rights

Of all the IPRs, copyright is perhaps the most complex for the multimedia publisher to navigate(14). From its creation in the 1600s where it was designed to provide a monopoly right for the early printers, it has been expanded to cover material as diverse as artistic works and computer programs. An unfortunate side effect of that diversity has been the need for copyright to contain a wide variety of types and lengths of protection.

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 a number of Usenet newsgroups that carry pictures (notably those of supermodels or actresses)(15), where it has been estimated that between 95 and 100% of the pictures made available are infringing copies. Equally, electronic mail messages are subject to copyright protection as literary works, and as a result, copying them in whole or in part, without the permission of their author is a breach of copyright. In practice, however, there is often little more than lip service paid to this(16).

Section 107 of the Copyright, Designs and Patents Act (CDPA) 1988(17) 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 WWW, what is less clear is the situation regarding an individual who simply places infringing material on a webserver 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 was placed on an open access webserver; 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(18).

Table 1: What type of works may be protected ?

Literary Works

Literary works for this purpose include not only novels, poetry and non-fiction books but also all sorts of other written works which are original. Their literary merit is unimportant(19). This means that letters, memoranda, directories, e-mail messages and WWW pages may be protected. It should also be remembered that computer programs and code are protected as literary works.

Dramatic Works

Dramatic works for this purpose include 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

Artistic works for this purpose include graphic works, photographs, sculptures, collages, maps, charts and plans. These are protected regardless of artistic merit. However, works of architecture and of artistic craftsmanship require artistic quality in the work to qualify for protection

Musical Works

Musical works for this purpose include musical scores including any annotations and directions. Lyrics, however, are not, as they are protected as literary works.

Sound Recordings

This category covers every type of sound recording on any type of medium from which sounds can be reproduced.

Films

'Films' in this context covers 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

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

Cable Programmes

These are defined as 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.

Performers' Rights

While these rights are not technically copyrights, they provide protection to performers and persons who hold recording rights in a performance. These rights are included in the CDPA 1988.

13 See for instance in the US, the controversial report of the IITF Working Group on Intellectual Property Rights on "Intellectual Property and the National Information Infrastructure" which was chaired by Assistant Secretary of Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman, and makes legislative recommendations to Congress to fine tune the law for the digital age - published September 1995 and archived in various formats at http://www.uspto.gov/web/ipnii/ (as of 26/11/95).

14 For a general overview of intellectual property law, see Bainbridge, D. Intellectual Property 3rd ed. Pitman Publishing 1995. For a specific, but dated, overview of the CDPA 1988 see Dworkin, D. & Taylor, R.D. Blackstone's Guide to the Copyright Designs and Patents Act 1988 Blackstone Press 1989.

15 See as an example the newsgroups alt.binaries.pictures.supermodels and alt.binaries.pictures.teen-idols (the latter is archived at http://web.cs.ubc.ca/grn/newsgroups as of 14/11/95).

16 Although increasingly, particularly on legal oriented e-mail lists and newsgroups, individuals are beginning to expressly assert their rights in their posts by way of statements, outlining what purposes their posts may be copied for, placed in their signature blocks. Further, the recent development of Microsoft Network (MSN) and the resulting fear that Microsoft intends to dominate Internet services in the same way that it dominates the PC operating system and software markets, has led some individuals who post on Usenet newsgroups to expressly prohibit MSN from making and caching copies of their posts. For example: "Microsoft Network is prohibited from reproducing this work in any form, in whole or in part, without the express written consent of the original author."

17 Which applies to Scotland, s157 CDPA 1988.

18 The US case, US v LaMacchia No 94 10092 RGS (D.Mass December 28 1994) demonstrates why such distinctions may be important. See also the UK cases CBS Records v Ames Records and Tapes [1982] Ch 91; CBS Songs v Amstrad Consumer Electronics plc [1988] AC 1013.

19 Although their length may be important, as single words or short phrases may be denied copyright protection, particularly if they could be better protected by trademark or the tort of "passing off". See Exxon Corporation v Exxon Insurance Consultants Ltd [1982] Ch. 119.

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