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Contents
In any discussion of electronic publishing, it is inevitable that the issue of the role of intellectual property in this sphere will be raised, for it is probably the single largest problem facing electronic publishers, and, of course, those who actually 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 a piece of 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 that data. As those engaged in the current TLTP multimedia work will have discovered, there is often more effort expended in obtaining IPRs on material 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.
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), where it has been estimated that between 95 and 100% of the pictures available are infringing copies. Similarly, while in theory at least, electronic mail messages, as literary works, are the intellectual property of their creators and thus copying them in whole or in part, without the permission of their author is technically a breach of copyright, there is often little more than lip service paid to this.
Section 107 of the Copyright, Designs and Patents Act (CDPA)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 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.
There are three important copyright issues relating directly to aspects of the WWW itself. It would seem that the actual layout of a webpage, as opposed to it’s 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 a infringing action. This may be ameliorated to some degree by the fact that a the moment the HTML standard is still a fairly limited technology, and thus there are only limited ways of designing a page. Another as yet unresolved question concerns the issue of a webserver which does not itself contain any infringing material, but which has links to sites that do. Does the owner of that website 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 WWW link times, especially to transatlantic websites, has been the development of various levels of local storage of copies of resources held on remote websites. At the simplest level, this may simply be storage of recently visited webpages on a user’s PC, either in RAM or in a hard disk cache. At a somewhat higher level, some sites, such as HENSA in the UK, store large numbers of webpages in their caches, users can then set their browsers to check if pages are stored in those local caches, before attempting to access the remote website. However, 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 further that this includes storing the work in any medium by electronic means. Whether or not this apparent infringement of intellectual property rights will affect the use of caching technology remains to be seen. However, web sites with “revolving” commercial advertising - where each time a web page is accessed a new advertising logo is seen - may see caching as a threat to their future viability, although apparently it is possible to add code to a webpage which in effect tells a cache that the owner of that page does not wish it to be cached.
A recent development in this respect is the controversy over the allocation of domain names. All sites on the WWW have identifiers known as domain names and these usually contain the name of the organisation which runs the site i.e. www.hull.ac.uk or www.microsoft.com. The controversy lies in whether domain names are, or should be, subject to trademark law. For example, in the US, Adam Curry, a former MTV VJ, is currently engaged in litigation with MTV over whether he can use the domain name mtv.com. Other problems have arisen when companies have registered domain names containing their competitors’ names or brand names, or when individuals have registered domain names containing the names or brands of major firms and then attempted to hold those firms to ransom.
As with other liability issues, such as those surrounding defamation, the first line of defence for an educational website is to ensure that those creating webpages are aware of the relevant law and their obligations under it. Those creating both institutional and personal webpages should be informed that breach of another’s intellectual property rights will be a breach of the institution’s code of practice and thus, where necessary, subject to internal disciplinary procedures. Thus, 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 such time as verification as to its legitimate use can be provided On a more practical basis the owner of a website would be advised to have some form of access counter for webpages, so that an pages which suddenly receives an unusually high level of access hits can be checked for content Equally, it would be sensible to consider which, if any, of the Usenet groups which carry images are necessary for HE purposes and should thus be carried, given the often high level of IPR infringement which takes place on them - there is little point served by putting temptation in users’ way.
Andrew Charlesworth is Director of the Information Law and Technology Unit at the University of Hull Law School. He is currently engaged in a study of the legal issues relating to the use of WWW technology at HE 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 {yourfirstname} {yourlastname}
to
mailbase@mailbase.ac.uk
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 July 1995, harmonises the basic term of copyright in the EC extending it to 70 years. It appears at present 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.
It has also been reported recently that following the implementation of that directive in the EC Member States that a provision of GATT will restore copyrights on a number of foreign books, paintings, films, photos and sketches that are currently in the U.S. public domain. The rule, scheduled to go into effect Jan. 1, 1996, 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.
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