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Internet Publishing and Digital Rights:
The Changing Balance between Access and Ownership

(Released July 2004)

 
  by Alison Knight  

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Review Article

When I sell you a quantum of airspace the whole point is that - apart from molecules of thin air - there is nothing there. The key is, of course, that I have transferred to you not a thing but a 'bundle of rights', and it is the 'bundle of rights' that comprises the property (Gray 1991, cited in Drahos 1996)1.

Article 27 of the United Nations Declaration on Human Rights states: 'the public has a right to be entitled to the dissemination to the public of critical and scientific works . . . authors have the right to seek protection of moral and economic rights for their creation' (cited in Eisenschitz and Turner 1997, p.219).

It is amazing that the mere mention of the concept intellectual property rights can elicit vastly different reactions in ordinary people, from complete indifference, causing the eyes to glaze over and the head to nod, to sheer panic, where the eyes widen and the heart pounds. Yet it is true. It all depends, of course, on whether that person has been affected by such rights, if at all. The term intellectual property, which has only been in existence since 1967, refers to a number of different rights: trademarks, patents, service marks and copyright.

Most people have difficulty understanding intellectual property rights, partly because of their abstract nature; they appear as just a bundle of invisible rights. Moreover, intellectual property rights are so complicated that it is easier to pretend they do not exist and to ignore them rather than to try to comprehend them. However, ignorance is no protection under the law - as many ordinary people have found out at their own expense. New international legislation regarding copyright has changed the way the public interacts with information, and as Bill Thompson, a commentator for the BBC World Service programme Go Digital, points out, the new legislation could make criminals of any one of us. Simply by using peer-to-peer network software to share unlicensed copies of films and music we could be breaking the law (Thompson 2003) .

How have we reached a situation where ordinary people can so easily find themselves breaking the law without even realising it? The answer lies in the changes to copyright law.

Copyright

Copyright law is concerned with protecting individuals' expression of ideas in the form of creative works; it does not protect the ideas themselves. "Copyright gives the creators of a wide range of material, such as literature, art, music, sound recordings, films and broadcasts, economic rights enabling them to control use of their material in a number of ways, such as by making copies, issuing copies to the public, performing in public, broadcasting and use on-line. Copyright also gives moral rights to be identified as the creator of certain kinds of material, and to object to distortion or mutilation of it. The purpose of copyright is to allow creators to gain economic rewards for their efforts and so encourage future creativity and the development of new material, which benefits us all" (UK Patent Office 2001)3.

Copyright legislation has been in existence since the sixteenth century. Its aims have been to encourage education and learning, rewarding authors for their efforts by giving them a monopoly on the printing of their works for a set period of time. It also acknowledges the advantages of collective knowledge by allowing copyright to lapse after a period and for the work to enter the public domain. It then becomes a free public resource for all to build upon, thereby circulating new knowledge.

The needs of the author and those of the consumer have, until the 1990s, been fairly well balanced. This is because until the emergence of the digital era copying has always been relatively difficult. But now, with the widespread use of the Internet, it is much easier to copy digital works than printed material. It has also become difficult to enforce copyright on the Internet due to the sheer volume of usage. This became a huge problem for the music industry in particular, when it was discovered that consumers were downloading music for free over the Internet in preference to buying CDs from record stores. As a result of this, information providers decided to use new encryption technology to protect their sites from illicit copying.

Digital Rights Management Systems

The new technology, Digital Rights Management (DRM) systems, protects the copyrights of online content providers while ensuring a secure method of payment for the goods and services made available. DRM systems prevent unauthorised access to sites through encryption codes written into the software and allow access to subscribers through passwords and e-payment keys (Foroughi, Albin and Gillard 2002).

While DRM systems provide many advantages to information providers they can place users at a disadvantage. Legitimate users of a site may find themselves limited by conditions imposed on them by the providers. For example, files may be Read Only, so users cannot copy small parts of the text in order to quote the work. They may also find that they can only access the software from a certain machine; they may not be able to copy it from desktop computers to more convenient laptops.

Eventually some users started to design circumvention technologies--computer programs that would breach DRM systems--thereby allowing them to use the devices in the way they chose. Information providers were unhappy, as a small group that had started to circumvent the DRM systems made the technology they used available to a wider audience over the Internet. Service providers called for new legislation designed to make circumvention illegal.

Recent changes to the law

New laws have been introduced over the last eight years giving legal protection to works in the digital environment; they explicitly prohibit the altering or removal of new encryption technologies embedded in online texts. In 1996 the World Intellectual Property Organisation (WIPO) Treaty made a move towards international legislation leading to the following laws being passed: the Digital Millennium Copyright Act (DMCA, 1998) in the US; and the European Directive 2001/29/EC in Europe, which requires member states to implement changes to their own legislation. As a result of the European Directive the UK responded by updating the 1988 Copyright Designs and Patents Act with the implementation of the Copyright and Related Rights Regulations, 2003. In March 2004 the EU Intellectual Property Rights Enforcement Directive was passed, giving member states just 18 months to implement it.

A common feature of all these documents is that they all incorporate into law provision for effective technical measures and digital rights management information, thereby making circumvention techniques illegal (Campaign for Digital Rights 2004)4. Once circumvention became illegal court cases started to appear, such as that of Jon Johansen of Norway, a teenager who wrote a code to enable him to watch DVD movies on his Linux machine. He was eventually acquitted in 2003; however, many other cases in the US and Europe are still pending, highlighting how seriously information providers view the breach of their systems (Electronic Frontier Foundation 20035; Gasaway 2003).

How the changes in legislation have affected rights holders

Alikha and Mashelkar (20046) regard the protection afforded by intellectual property rights as crucial to economic growth in an information society. As a country's economy becomes more dependent on information and knowledge rather than on manufacturing those intellectual industries need encouragement to grow. Such growth will promote competition and create more jobs and a higher standard of living. Copyright law is seen as not only protecting the author of a work but also defending investments in what Alikha and Mashelkar term the culture industry from piracy. Because copyright is classed as an intellectual property right it assumes an economic value and any infringement is termed theft.

A high profile case of copyright infringement involved an Internet site called Napster originally set up by Shaun Fanning, a computer science student. Napster's peer-to-peer network capabilities allowed users to share their personal collections of audio and video music files across the Internet. Users of the system were able to download music freely without paying royalties to the writers or producers. Eventually the Recording Industry Association of America successfully sued for copyright infringement in 2001 (Murphy 20027). Napster has since been bought by software company Roxio and transformed into a legal company selling a music subscription service (Sexton 20048).

How the changes in legislation have affected users and consumers

In both the UK and the US copyright laws have provisions for what is called fair dealing in the UK and fair use in the US. These are exemptions to the copyright restrictions that allow users to copy portions of a work without seeking permission from the author. In the US fair use is covered under Section 107 of the Digital Millennium Copyright Act and allows a percentage of a work to be copied, although not for financial gain. Copying may be carried out for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research (Russell 2003, p. 34). In the UK fair dealing is allowed for the purpose of non-commercial research and private study; criticising or reviewing acknowledged works; and reporting of current events.

Unfortunately for users and consumers the new DRM technology has made it difficult or impossible to exert fair use rights, as the very act of viewing digital material on the Internet creates a copy of the whole of the work. In many cases encryption has prevented even small amounts of works from being copied for comment or review. DRM technology cannot differentiate between piracy and legitimate usage so it prevents all copying. A user who tries to circumvent the software that prevents him or her from exerting fair rights is found to be breaking the law (Russell 2003).

Public pressure groups like the Campaign for Digital Rights are lobbying for changes to allow consumers to exert their fair use rights. Meanwhile, you could be breaking the law simply by logging onto an illegal file sharing site and downloading music files.

How to avoid breaking the law

Legal music downloads
Downloading music off the Internet has become a popular hobby. In the US around 38% of listeners downloaded their music off the World Wide Web in 2002 (Conhaim 2002), some legally, some not. The Recording Industry Association of America has sued 2,454 people since September 2003 for online copyright infringement. In Europe the new EU Intellectual Property Rights Enforcement Directive of 2004 allows rights holders to search homes of infringement suspects, but only after obtaining an injunction from a competent judicial authority (Paul Meller, Computer Weekly, 10 March, 2004). This shows how serious music companies are about law enforcement.

If you want to get your music off the Internet rather than your local record store there are plenty of legal sites. Some of these charge a fixed monthly fee; others charge a small fee per song. Some allow the sharing of downloaded music with a few friends, while others don't. In April 2001 the London based "Sunday Times9" mentioned four such sites for music downloads: www.emusic.com, an American site with a flat rate subscription service; www.icrunch.co.uk, the UK equivalent; www.musicnet.com the industry equivalent to Napster; and finally www.playlouder.co.uk, a pay per track service.

Then again there is the legal version of Napster, and its rival Apple Computers' iTunes Music Store. Apple has an advantage as they invented the iPod music player, the easiest way to listen to iTunes music (The Financial Times, March 3, 2004. P. 12). Other options are becoming available as more online music stores appear.

Making your web site legal
More and more people are creating their own web sites these days. Whether you are producing one for your own interest or for your library or study group, a number of issues need to be addressed to ensure that your site is legal. For instance, it is very easy to borrow someone else's photographs or graphics to add to your site, but these are covered by copyright law and copying is illegal.

Shirley Kennedy (2001) provides an essential guide to problems you may encounter when designing your web site and how to overcome them. One that has become quite controversial is that of linking from your site to other sites. Kennedy identifies six different issues surrounding linking. These points include: the creation of derivative works, passing off other peoples' work as your own, linking to other sites that could imply defamation, trademark infringement, deep linking, and finally the use of frames which could cause navigation difficulties. Perhaps the most well known is that of deep linking, where the link bypasses the home page of the other site, linking directly to an inner page. Law suits have been brought over deep linking issues, as circumventing the home page of a site may also mean lost revenue from advertising on that page. For a useful checklist on linking see OHare (200310). Further advice is offered by Kennedy (2001), Pedley (2001), Pike (2002) and Shkolikov (2002). Finally a useful list of websites dealing with copyright law and web sites can be found at http://bailiwick.lib.uiowa.edu/webbuilder/copyright.html

Library issues
Librarians have always had to be well informed on copyright issues surrounding printed materials. Now, with the new legislation, they need to enhance those skills to encompass digital copyright law. There are so many issues at stake that it can be a daunting experience. Charles Oppenheim (200411), Professor of Information Science at Loughborough University, examines the changes to copyright law in the UK since the implementation of the Copyright and Related Rights Regulations of 2003 in a feature article. Likewise, Rebecca Butler (2004), Associate Professor of Education Technology at Northern Illinois University, has produced an overview of US copyright law. It is clear that with so much confusion surrounding the new legislation a detailed copyright policy is essential for every library today.

It is not common for libraries to be taken to court; as non-profit making organisations most of their activities fall under the fair use doctrine and so they are not liable for damages. However, as Robert Ogden (2003) points out, damages for infringement activity can amount to $30,000, so it is best to have a policy and stick to it. Gretchen Hoffmann (200312) gives details of writing a policy and why it is needed in her ongoing series on copyright in the "Texas Library Journal".

For more information regarding copyright and libraries, Dr. Robert Diotalevi, Programe coordinator of Legal Studies at Florida Gulf Coast University provides an excellent list of useful websites to visit for advice on copyright in the US. In the UK Paul Pedley produces a weblog on legal issues affecting the information profession which he updates almost daily. Soon after the implementation of the European Directive (2001/29/EC) he produced a summary of changes to the UK laws on copyright, one of the key changes noted being the restriction of fair dealing to non-commercial use. Also private study is explicitly spelled out as not including any study which is directly or indirectly for a commercial purpose, (Pedley, 2003). Graham Cornish (200313) also highlights these issues in his "Guidelines on the recent changes to copyright law", pointing out that what is regarded as non-commercial can at times be ambiguous. For example: it is uncertain whether work carried out for charities to raise funds is commercial or non-commercial.

Plagiarism

A related concern in the higher education field is that of plagiarism. Cutting and pasting from the Internet makes it easy for students to copy other people's work and claim it as their own. Many universities in the US and UK now use anti-plagiarism software to check that essays and other pieces of work are actually original by comparing key phrases against a database of already published works. The tutor can then decide whether plagiarism has taken place. For more information on this topic see the JISC Plagiarism Advisory Service website at: www.jiscpas.ac.uk.

Hopefully, armed with all this information we can all stay within the law as it now stands. But what of the future?

Ways of redressing the balance

Changes to international copyright laws have been the result of changes in the way we access information today, i.e. increasingly through the Internet. The new laws have tipped the balance from protecting the needs of information users to protecting those of providers. Have we achieved the right balance?

There have been calls for what Vaidhyanathan (2001) refers to as thin rather than thick copyright laws. The author argues against the stronger restrictions and the limited access that is imposed on users by the DRM systems. Vaidhyanathan argues for thin copyright that is just enough to protect authors, artists, musicians, etc. but also allows democratic freedom of information. This moral right of ordinary people to access their nations culture in the form of published thoughts and ideas is, according to Yates, "a gift to the public" (quoted in Drahos, 1996, p. 27). It is by accessing the works of other artists and writers that new ideas can develop and lead to future creativity. This is a similar concept to that put forward by Russell (2003) and also by Eisenschitz and Turner (1997).

Russell (2003) does not argue against DRM systems, but instead suggests that they should be modified to allow fair use as well as protect rights holders. She puts forward the view that libraries should be able to lend digital works; information about customers should be confidential (some DRM systems require personal information of this nature); and access to information should not be dependent on specific types of software--users should have a choice. She also recommends that the development of DRM standards should be open to public discussion.

Eisenschitz and Turner (1997, pp. 220-221) make suggestions for amending the copyright law to allow users to browse a small part of a work prior to purchase; to agree on allowing a certain percentage of the work be copied; and to treat libraries as a special case so that patrons would be allowed to view whole documents on the screen, but only copy parts of them. This last suggestion would allow those without home computers to participate in the Information Society. Finally, like Russell (2003), they suggest involvement by the public as being paramount and that a special commission be set up to act in the interests of the public regarding copyright issues.

A different concept has been put forward by the Creative Commons, an organisation whose aim is to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules (Creative Commons 200414). In December 2002 the Creative Commons released a set of alternative copyright licenses for public use, free of charge, available over the Internet. The idea is to encourage people to dedicate their creative works to the public domain - or retain their copyright while licensing them as free for certain uses, on certain conditions. This form of copyright is more concerned with the moral rights of the author than the economic rights. In many cases it allows the public free access to creative works while protecting the material from derogatory use. Recently the BBC announced that they may adopt the system for a new online archive of factual television content due for release this autumn (Chillingworth 2004, p. 1). If such a prestigious organisation as the BBC goes ahead with the idea it could mark a turning point in copyright history.

There is growing public awareness of changes in copyright law because of high profile cases like that of Napster. The public may still be confused by the legislation, but at least they may now know that simple acts, like copying tracks from CDs to play at a party, or sharing music over the Internet, can be illegal. On the other hand there are now legal music download products. The question is: will the public use them? Napster users logged on not just to download music for free but because they could also pick their favourite tracks instead of being forced to purchase unwanted ones. Many users also feel that the record industry uses monopolistic practices to overprice CDs while failing to develop a range of new artists. It is this freedom of choice that the customer expects. As Eric Garland, Big Champagnes chief executive, states, The record industry needs to win back the hearts and minds of record buyers (quoted in Harmon & Schwartz 200315).

Conclusion

Intellectual property rights are not widely understood. However, we can no longer ignore them: the new Digital Rights Management technology which has made it difficult or impossible to exert fair use rights has been made legitimate by recent international law. The needs of the author and those of the consumer are no longer in equilibrium, but have shifted in favour of the rights holders. A degree of copyright protection is a good thing to encourage and reward creativity but not completely at the expense of the general public. Many information professionals believe that a new approach is needed to address the problem and restore the balance.

Acknowledgements
I would like to thank my colleagues at CSA East Grinstead: Liz Rowan, Peter Ellway, Irene Nicholas, Hilary Mortimer and Douglas Brown, for their help in producing this Hot Topic.

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