| Intellectual Property and the Internet |
Copyright In the case of copyright, for example, existing law is essentially based on the presumption that the making of any copy is considered an explotiation which must be authorised by the copyright owner. In the days when copies were necessarily physical entities, and every copy could be independently exploited, that presumption was reasonable. However, in the age of digital communications when works are transmitted from a digitised source and relayed to the end-user over a digital network like the Internet, whose very operation involves the automatic creation of intermediate, incidental copies, which are not themselves directly exploited, then such a presumption is no longer valid. And indeed, attempting to apply such old presumptions and paradigms, which worked with the older print and broadcast media, could risk stifling the development of the Internet and depriving the ordinary consumer of the benefits which would otherwise accrue from the new competition and disintermediation. The debate between the legislators, the vested interests of established media operations, the new Internet service and network operators and consumer interest groups (including Library Associations) has been intensive. On the one side there is a legitimate need to provide adequate protection against infringement of established rights in the new medium. On the other, it is essential that the technological differences in the nature and operation of the new medium are acknowledged and that the law should also be adapted to avoid imposing inappropriate restrictions which would adversely affect that operation and consumers' access to information and services. Legislative amendments have been made or are under discussion in a number of countries and regions around the world following the conclusion of two WIPO treaties in December 1996, which were intended to address the changes necessary to adapt copyright law to the challenges and realities of the digital and on-line media.
The United States has implemented the WIPO Treaty obligations in the Digital Millennium Copyright Act (DMCA), which includes a first significant attempt to acknowledge the technical realities of Internet operation, by providing clear limitations on liability of intermediaries, including network and service providers, for copyright infringements committed by users of those networks and services. It is very important that copyright owners and content providers, as well as Internet service businesses should be aware of these provisions and how they can be used to promote an effective, co-operative approach to dealing with infringements of copyright on the Internet.
In Europe, the European Commission produced its first proposal for a Directive on Copyright and Related Rights in the Information Society in December, 1997. That proposal went beyond the WIPO Treaty obligations in a number of ways. It was the subject of much contentious debate both in the European Parliament and between parties who stood to be affected by its implementation. An amended proposal for a Directive on Copyright and Related Rights in the Information Society was issued in May, 1999, and has been the subject of further consideration by the European Parliament and the Council of Ministers working group. An update on developments was published by the Internal Market Directorate in March 2000. The Council of Ministers subsequent acceptance of the amended proposal was welcomed by the Commission in a statement issued on 9 June, 2000. The European Parliament made a few amendments to the Commission's revised proposal, but the provisions still go beyond what would have been required to comply with the WIPO Copyright Treaties of 1996. The Commission published a formal Opinion on the European Parliament's amendments, accepting them all. The final Directive 2001/29/EC was formally published in Official Journal L 167 on 22 June, 2001. The UK Patent Office Copyright Directorate is consulting on the proposals for UK Implementation of the Copyright Directive 2001/29/EC The copyright owning lobby, represented principally by the major record, publishing and film companies and their industry associations, considered that the original proposal left loopholes which would mean service and network operators could avoid taking any responsibility for dealing with copyright infringements carried out by others using their services. The service and network operators felt that, on the contrary, the first proposal failed to recognise the technical realities of the Internet and would have imposed oppressive obligations on them in their role as intermediaries. They claimed that with gigabytes of data being transmitted across their networks and stored digitally (as sequences of "1"s and "0"s) on servers on the Internet every day, it would be impossible for them to identify whether every particular set of data was even a copyright work, let alone who might be the owner of any relevant copyright in such a work or if its presence on a server or transmission across a network was authorised or not! There was also a fear that the Directive as then proposed would render it impossible for service providers and network operators to maintain the network caches to improve the speed of operation and reduce congestion on the Internet. The service and network operators made it clear that they were prepared to co-operate in establishing reasonable and practicable procedures to ensure infringing material could be quickly removed once properly identified. To this end, much effort has gone into developing proposals for a system of "notice and take down", which could be operated as a self-regulatory or a statutory initiative (by analogy with the Infringement Liability Limitation provisions in the DMCA) to deal effectively with recognised infringements. The Commission's amended proposal for a Directive showed a more realistic appreciation of the technical nature and operation of the new media, but still met with continued intensive opposition from a number of quarters. Now that the Directive has been agreed by all the relevant EU bodies, the Member States will have 18 months from the date the final instrument comes into force to implement it into national law. No doubt the debate over the nuances of enforcement will continue during that period! WIPO held a Workshop on Service Provider Liability in December 1999, at which some interesting papers were presented on the various concerns. The paper (available in Word 97 format) presented on Notice and Take Down Agreements is particularly relevant.
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