Rachel Brooks @REDrinkwater
January 2016

Introduction

The internet has provided a platform for cross-national collaboration, user anonymity and everyday users who are not only content consumers, but content creators and distributors. Technological advances have increased the scope of what can be produced digitally, but whilst the internet has provided a new channel for the legitimate promotion and distribution of products and services, it also provides the tools and platform for illegitimate copying, re-use and distribution of intellectual property.

Torremans (2013, p.5) identifies six intellectual property rights; trademarks, patents, copyright, performance rights, registered designs and design rights. In this paper I will be focusing primarily on copyright law and the challenges that the age of the internet have presented to its application.  These are wide-ranging and numerous, therefore I will explore some key areas.  Firstly, the impact of the internet and technology on consumer attitudes towards copyrighted content online and the disruptive effects of technology companies entering the copyright-distribution industry. Secondly, the challenges faced in identifying infringing use and attributing liability in the technological and global environment of the internet. Finally I will explore potential solutions to overcome these challenges.

Intellectual Property Law: 101

Before approaching a discussion about the challenges that copyright law is facing, it is important to understand the relevant elements of this law and its historical context.

Torremans (2013, p.3) offers us a succinct definition; “Copyright protects literary and artistic works, such as writings, drawings and music, by granting the right holder the exclusive right to reproduce the work and to communicate it to the public”.  Copyright protection is automatically granted to the creator of such works, but can be assigned to another individual or organisation, usually via a contract. The nature of the rights, for example the duration of the protection afforded by the law, differs depending on the categorisation of the work covered.

The concept of copyright originated in response to the invention and adoption of a new technology in the 1600s; Gutenberg’s moveable type and subsequently the printing press, which enabled quick, affordable copying of literary works. The Statute of Anne, 1709, legally formalised copyright, providing the author and any assignees the exclusive right to copy and print a literary work, enabling authors to continue to commercially exploit their work, to mitigate potential economic impacts of new technology (Torremans, 2013, p.9).

Over time, these basic copyright laws were subject to amendments, such as increasing the term of protection, the scope of works protected and in some countries, encompassing an author’s moral rights. Often these amendments have been direct responses to advancements in technology, the socio-economic changes that have resulted and precedent set by landmark legal cases as new technology has challenged existing copyright practices (Rimmer, 2007, pp.63-64). The Digital Copyright Millennium Act (DCMA), 1998 and the EU Digital Copyright Directive, 2003 both sought to address some of the challenges of digital and online copyright (Stokes, 2009).

Kirillova & Blinkov (2015, p.245) define a copyright infringement as “the deliberate use of copyrighted intellectual property, without permission of the authors or copyright holders or violating conditions of a contract on the use of works, harming the individual and society”. According to the World Intellectual Property Organisation (2011, p.4), intellectual property laws exist to encourage creativity and innovation through enabling economic reward to creators for their work, but also to manage the rights of the public in accessing those works. These definitions highlight the necessity of balancing a creator’s rights with the wider social benefit of and public right to access to information and knowledge (Borghi & Karapapa, 2013).

There are therefore some exceptions to prevent copyright from impeding its own purpose, which in the US is described as progressing the “science and useful arts” (The Heritage Foundation, 2012). These include ‘fair dealing’ (UK law) or ‘fair use’ (US law), which employ a utilitarian approach to permit the use of copyrighted works for purposes such as preserving cultural products, the practices of organisations such as libraries, private study and miscellaneous uses with a wider social benefit  (US Copyright Office, 2001; Intellectual Property Office, 2014).

The Age of the Internet: Technological and Social Environment

The ‘age of the internet’ in the context of this paper started in the late 1990s, when the restrictions on commercial usage of the internet were lifted and internet infrastructure became privatised (Weiser, 2003). Over subsequent years, the costs of processing power, bandwidth and storage continued to reduce, increasing the affordability and availability of the internet and associated technologies (Rifkin, 2000; Newman, 2013). The emergence and adoption of Web 2.0 technologies and associated social shifts from 2004 onwards have resulted in a highly-connected, digital world, in which everyday internet users have the tools, skills, access and desire to consume, produce, collaborate, share and distribute digital content online (Handel, 2008; Shirky, 2010; Newman, 2013).

Technological advances have also increased the scope of what can be produced digitally, with traditionally tangible media, such as books, music and artwork, becoming digitised (Gendreau, 2000; Lai, 2000) and lead to the widespread, increasing adoption of portable media devices, such as eReaders, MP3 players, smartphones and tablets (Deloitte LLP, 2015a). These trends have driven consumer demand for digitised, highly available media and ‘anytime, anywhere’ consumption  (De Kare-Silver, 2011; Friedman, 2013; IFPI, 2015) and contributed to increased social dependency on the internet and its digital content for entertainment, knowledge and social connections (Jackson, 2013), (Deloitte LLP, 2015b).

Challenge 1: Consumer Behaviours and Changing Industries

Consumers expect content on the internet to be free, both in terms of cost and availability (Weiser, 2003; Anderson, 2009; Farchy, 2011). Farchy (2011, p.247) believes this is a “historical lock-in effect”, where user perceptions are retained from a time when the internet was free and non-commercial.  Evidence suggests that consumer perception of the value of content is reduced when it is presented in a non-tangible, digital format (Styvén, 2010, p.1089). Also, many individuals perceive that obtaining copyright-infringing copies of digital media is “socially acceptable”, with little threat of detection or litigation (Perry Barlow, 1992; Newman, 2013; IFPI, 2015).

Therefore, when the desired content is not available legitimately, or at an acceptable price, many consumers will seek to obtain it from illegitimate sources, creating demand for pirated material (Kirillova & Blinkov, 2015). The internet provides a convenient marketplace. Evidence suggests that such piracy has economically impacted traditional media industries (Smith & Telang, 2009; Sinha, et al., 2010; RIAA, 2014; IFPI, 2015).

With the digitisation of traditional media formats and customer demand for integrated platforms and vast amounts of content, a number of technology organisations, such as Google, Amazon and Microsoft entered and disrupted a marketplace which was originally the domain of the copyright industries (Anderson, 2009; Picard, 2012). These organisations responded to consumer demand by introducing new business and service models, shifting away from the ownership of media files seen in traditional media business models, towards streaming and ad-supported services, such as Spotify and YouTube. In both of these models, the cost of the individual music track or album is not visible to the consumer, as the consumption of music is paid for either via subscription fees or advertising revenue.

I believe that the technology company’s responses to consumer demand may have intensified social attitudes regarding the value of and entitlement to content. Gould-Stewart (2010) explains that Google subsidiary, YouTube, encourages copyright owners to allow content that contravenes their copyright, suggesting that there are benefits to be gained for the content owner, including promotion and linked sales. It is arguable however that providing these models for consumption reiterates the expectation that content should be free of charge. Panethiere (2005, p.18) argues that artists gain minimal “incremental promotional benefit” from such activities and some artists argue that these models devalue the artistic content itself (Levy, 2014),(Linshi, 2014). Others however believe that such adaptation to consumer demand and changing methods is necessary for the survival of the traditional media industries (Anderson, 2009; Satell, 2014; Gray, 2015).

These organisations are also pushing the boundaries and definitions of copyright law, using defences such as fair use and utilitarian arguments of providing cultural enhancements and access to knowledge for society (Rimmer, 2007; Stokes, 2009, p.5; Borghi & Karapapa, 2013). Google acknowledges the controversial nature and risk of challenge of many of its activities, stating that it may have to change its working practices in response and that this “could result in a loss of revenue” or “otherwise harm” its business (Google, 2005; Rimmer, 2007, p.226).

Indeed there have been numerous legal actions raised against Google for its Google Books project in both the United States and Europe. The project entails the mass digitisation of entire literary works and making them available to the public via a search engine. Where copyright exists, only a ‘snippit’ of the book is made available (Rimmer, 2007; Stokes, 2009; Borghi & Karapapa, 2013).

In Authors Guild vs Google, Google was challenged on the grounds that it copied copyrighted works without permission and that it derived commercial benefit from the project, through an increase in views and associated advertising revenue (Rimmer, 2007, p.234). The Authors Guild also claimed that the project would prevent authors from receiving due reward for their work (Stokes, 2009).

Google’s defence, which was upheld by the court in 2013, was that its activities constituted fair use of the copyrighted material and that its use was transformative and of great public benefit, including the project under the clause for libraries, archives and other miscellaneous uses. Google stated that whilst it had no option but to scan the entirety of copyrighted works for the purposes of the project, it limited the amount of copied material available to the public where it did not have rights approval and would honour requests to opt out from publishers and authors (Rimmer, 2007, p.238).

The judge stated that gaining commercial benefit did not negate a fair use exemption and agreed with Google’s defence that it posed no economic competition to publishers and could potentially enhance the sale of texts. Finally the judge concluded that the public benefit of the Google Books service was substantial (Woodhead, 2014).

Indeed many of the defences for challenging copyright laws on the internet by service providers, such as aggregators, digital libraries and services such as Google Books appear to have origins in utilitarian theory, where the benefit to wider society of freely-available intellectual property is greater than the benefit to the individual copyright holder of restricting access and distribution.

However, these organisations also have significant commercial interest in the associated uptake of their online services and associated technologies. Without freely available content, their associated products have much less commercial value. YouTube’s advice to allow infringing content is not altruistic, as without popular content, it has no product and no associated revenue. Similarly Google commercially benefits from its Google Book service.

Challenge 2: Identifying Infringers and Attributing Liability

Under current laws, it is the responsibility of the copyright holder to identify infringements of their copyright, identify those responsible and to use the legal system to force them to desist or sue them for damages. However Kirillova & Blinkov (2015) observe that due to the anonymity and vastness of the internet, it is extremely difficult to identify violators of intellectual property law and even if the infringers can be identified, defending one’s rights can be challenging, time consuming and expensive (Rimmer, 2007, p.61; Newman, 2013; Kirillova & Blinkov, 2015).

It is also arguable that pursuing and punishing individuals has little overall impact on the problem and as such it is more common for legislation to be raised against organisations who facilitate mass infringements, as in the cases of Google Books and Napster.

Napster was launched in 1999 to enable users to share their private MP3 collections with other users, free of charge and, potentially, without the necessary copyright approval. Napster facilitated the sharing of copied music files, but did not copy or store the files. A number of parties filed suit against Napster for infringement of copyright, including the Recording Industry Association of America, the rock band Metallica and a number of record companies (Rimmer, 2007; Stokes, 2009).

Having identified the infringing individuals or organisations, the law is still faced with the difficulty of establishing where the responsibility for infringement lies (Lefort, 2013). Whilst an individual who copies and distributes a copyrighted file on the internet without authorisation may be infringing copyright, there are other internet intermediaries who may also be liable (Strowel, 2000; Stokes, 2009; Lefort, 2013).

The DMCA 1998 prevents Internet Service Providers (ISPs) becoming liable for any infringing activities undertaken by the users of their services, provided there is no knowledge of the infringing activity and the organisation takes action if it becomes aware of any infringing activity (Stokes, 2009, p.154). However establishing liability of such intermediaries has provided another challenge, partially due to the ever-evolving nature of the internet, in which the roles of these intermediaries has increased to encompass online service provision, which may not be appropriate to benefit from the ‘safe harbour’ granted to ISPs. (Strowel, 2000; Stokes, 2009).

Subsequently, Napster was found liable for “contributory and vicarious copyright infringement”, ordered to cease its copyright infringing activities and to police its service and users. It was deemed that Napster was exempt from the protection of the DMCA 1998, as company executives were aware of the infringements and took no action and that the main purpose of the service was to facilitate infringing activities, with unsubstantial intended non-infringing uses of the site (Rimmer, 2007, p.94).

Challenge 3: The Global Internet

Kirillova & Blinkov (2015, p.244) describe the internet as a “one-world electronic information space”. However, whilst the Berne Convention, 1886 and the Rome convention, 1961 acted to provide some consistency of copyright law across some nations, there are still significant differences in copyright laws around the world and jurisdiction adheres to geographic borders.

As such, the definitions and categories of work protected by copyright, what constitutes a copyright infringement or exception, who is liable and what punishment an infringement attracts varies across countries (Perry Barlow, 1992; Torremans, 2000; Panethiere, 2005). For example, in some countries, notably excluding the United States, copyright also encompasses moral rights or “dignity rights”, which afford protection of an author’s reputation and integrity in association with their work (Lee, 2001, p.797; World Intellectual Property Organisation, 2011).

Torremans (2000, p.105) states that “the law of the country in which the work is being used” or “in which the exploitation of the work takes place” should be applied to cases of online copyright infringement. However Lai (2000, pp.78-79) and Hyland (2014, p.51) observe that due to the seamless nature of cross-border internet usage and ease of multi-national collaboration, it can be difficult to identify the location where the infringement took place and therefore which country’s law should be applied.

Assuming the place of infringement can be identified, a copyright holder may not receive the same protection as they would in their home country or the country in which the work was created.  An author may write and publish a book online in the UK and a consumer in the US may then use sections of the narrative in pornographic fan-fiction. According to Torremans, the author would not be able to exert their moral rights, despite the fact that controlling circulation in an online digital marketplace to prevent it being used or exploited in another geographic territory is extremely difficult.

Similarly Rimmer (2007), Stokes (2009), Borghi & Karapapa (2013, p.6) and Woodhead (2014) consider that the UK equivalent of Fair Use, ‘Fair Dealing’, is more restrictive than the US exemption, particularly regarding commercial benefit. Subsequently, had the Google Books case been heard in a UK or European court, Google may not have been eligible for such an exemption.

Solutions

Copyright law is being challenged by the social and technological trends of the age of the internet, with an increase in the numbers and the complexity of intellectual property cases (Rimmer, 2007; Dowd, 2015). It is widely agreed that intellectual property law is not adapting at a fast enough rate to be appropriate in the new digital, internet-driven world in which it needs to operate, (Perry Barlow, 1992; Gendreau, 2000; Lai, 2000; Torremans, 2000; Weiser, 2003; Kirillova & Blinkov, 2015).

Perry Barlow (1992) argues that copyright law remains grounded in the protection of physical, tangible works and that it is ill-suited to the very different, digital environment. Kirillova & Blinkov (2015, p.248) echo this, claiming that “copyright protection under modern conditions” is “no longer satisfactory…for rights holders nor for consumers”.

In Metro-Goldwyn-Mayer Studios vs Grokster, the judge stated that the case served to “expand copyright law beyond its well-drawn boundaries” (Rimmer, 2007, p.97) and in Sony Corporation of America vs Universal City Studios Inc, the judge stated that he faced the challenge of resolving the case “as best we can in light of ill-fitting existing copyright law” (Rimmer, 2007, p.68). In the Napster case, there were multiple decisions made by judges which were appealed and subsequently overturned (Rimmer, 2007; Stokes, 2009).  This evidence suggests that current copyright law is difficult to apply to modern copyright cases, leading to challenging court cases and inconsistency of judgements.

Some writers suggest changes to existing legislation which may offer partial solutions to some of these challenges. These include Ganley’s (2006) revised fair dealing exception for freedom of information under UK law, Litman’s (2002, pp.140-141) proposal to exclude the “everyday user” from online copyright law and Panethiere’s (2005) suggestion of harsher financial penalties for infringement as a deterrent. Suggestions from Panethiere (2005) and Kirillova & Blinkov (2015) consider the challenges of the global internet, exploring international solutions and exercising the principle of extraterritoriality in online copyright cases.

However the Appeals Court in Metro-Goldwyn-Mayer Studios vs Grokster warned against drastic changes to legislation in response to a market change, such as the emergence of the age of the internet;

“we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation…Thus it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude” (US Court of Appeals for Ninth Circuit in (Stokes, 2009, p.152).

Indeed, whilst the DMCA 1998 attempted to address some of the technical and legal challenges posed by the age of the internet, Rimmer (2007, p.227) observes that the Act is insufficient, partially because it was created in 1998 when, compared to today, the internet world was in its infancy.

And technological innovation continues to change the digital environment at a rapid rate. For example, whilst ad-supported online business models have been widely adopted, the emergence of ad-blocking software for consumers threatens to disrupt the market, which could render new laws based on the current online environment and business models obsolete (Burrows, 2015; Rosenwald, 2015).

The UK Intellectual Property Office (2012) and Litman (2002) suggest it is the responsibility of the “copyright industries” to establish the rules and laws of copyright in the digital era, whereas Garnett (2016) argues that it is the role of technology companies to enforce existing intellectual property law.

Kirillova & Blinkov (2015) warn that over-restriction could lead to an increase in violations and some suggest that increasing technological controls would merely encourage the innovation of and market for workarounds, turning “intellectual property theft into a sport and challenge” (Perry Barlow, 1992). Also technologically enforcing the law raises a number of questions regarding which country’s law should be enforced by any given device, given the international nature of device manufacture, operation and consumption. This is perhaps an interesting area for future investigation.

Perry Barlow (1992) believes that “the protections that we will develop will reply far more on ethics and technology than on law”, indeed his proposals for technological solutions aim to facilitate ethical and social change to dissuade people from committing copyright crimes and the UK IPO favour social change, including reduced “incentives to infringe copyright” (Intellectual Property Office, 2012, p.48).

Smith-Higgins (2015) discusses the importance of educating future creators on their rights as copyright holders and the UK government have taken steps to incorporate this in their music education manifesto (Department for Education & Skills, 2006). However this does not address the change required to consumer attitudes. Composer, David Arnold, proposes that the immorality of copyright infringement and the value of copyrighted works should be taught at nursery level, instilling at a young age a sense of the importance of respecting copyright, valuing copyrighted works and the ethical implications of infringing copyright (Bloom, 2004). Panethiere (2005, p.17) echoes this sentiment, proposing a consistent, continual, global programme of training which he states is “essential to seeing any true improvement in the situation of piracy worldwide” although Litman (2002, p.140) argues the practicality of this, describing the approach of negotiating with industry and end users as “unwieldy”.

I believe that if there is a solution, then it must be a holistic approach. I believe that cultural change and education is the starting point of addressing the issues with copyright in the age of the internet, particularly when considering individual behaviour. Only once this change has been effected, can any required legislative changes be identified and addressed to ensure that copyright law continues to promote its core principle of encouraging innovation, ensuring just reward for creators of copyright-eligible products and is appropriate and reasonable in the modern digital age.

However legislative controls cannot be dismissed as an important factor in protecting copyright. Whilst Shavell (2002) notes that morality and ethics play an equal part to the law in moderating society’s behaviour, he also observes that commercial organisations and amoral individuals are less likely to adhere to a moral code and may therefore require legislation to enforce socially-acceptable behaviour.  As such I believe it is also important for influential organisations, such as the large technology companies and online service providers to accept responsibility for supporting a message of the value of copyrighted content and the importance of protecting copyright.

There are many who oppose the idea of constraints on copyright online and campaign for open information, proposing that there should be no restrictions on the flow of information on the internet. Campaigners such as Perry Barlow (1992), Litman (2002) and Lessig (2007) claim that making content freely available drives creativity, innovation and competition and that restricting information can inhibit the same.

 

Conclusion

The ‘age of the internet’ has caused significant changes to the world and subsequently significant challenges to copyright law. Technological advancements, the digitisation of traditional media formats and the adoption of mobile media devices have changed consumer expectations of online media products. These factors coupled with the practices of technology companies, who have entered the copyright industry market, have driven consumer demand for free access to online content and a perception that acquiring copyright-infringing versions of this content is not a crime, suggesting that current copyright law is an ineffectual deterrent.

This presents a conflict of interests between creators of work, seeking to protect their intellectual property rights, consumers, online service providers and the law, leading to an increase in the numbers and complexity of intellectual property legal cases. It appears however that the law is ill-equipped to deal with many of the cases arising, due to both the technological, social and global aspects of the age of the internet. Numerous high-profile cases have highlighted that whilst service providers, such as aggregators, digital libraries and services such as Google Books offer significant social benefit, their practices challenge existing copyright law and push the limits of defences such as ‘fair use’.

In an attempt to reflect modern digital practices, copyright-related court cases continue to set precedent, whilst amendments to copyright legislation seek to reflect technological and societal changes. Despite this, it is widely agreed that the law is still inappropriate to the task in hand and numerous proposals have been made for legislative, technological and societal solutions to overcome the challenges.

In this paper, I explored a holistic approach to resolving some of the challenges, starting with education and social change before implementing technological and legislative changes. This is something of a utopian view and is rather easy to write in a report. In reality, whilst making changes to national law is possible, seeking agreement on an international level raises numerous challenges. Changing social and cultural behaviours, attitudes and beliefs, particularly over global boundaries and cultures may take many generations and significant government investment (Shavell, 2002). Finally it is likely that by the time such a solution were implemented, technology would have progressed further, perhaps rendering the new laws and social norms obsolete.

It appears that there is little agreement as to the best approach to overcome the challenges, in part due to the differing motivations and viewpoints of key stakeholders in the field and possibly due to a lack of a holistic view, which may be expected in such a complex, global topic.

Whatever the solution, it is essential to keep in mind the main principles and purposes of copyright and wider intellectual property law;  that is to encourage innovation and to protect the rights and interests of both individual copyright holders and wider society.

 

 

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