Copyright and the Internet: In Search of
Equilibrium
By Scott A. Trendell, Esquire
I. What Is Copyright?
Copyright is a property right protected by law which falls within an area
more commonly referred to as intellectual property. The existence of a copyright
in a particular work involves expressing an idea in a created work by placing
the idea in a fixed form. More specifically, by placing the idea in a tangible
medium of expression. Traditionally, this meant for a writer that a copyright
existed in the written work when the ink met the page. For a painter when
the paint graced the canvas. For a sculptor when the hands molded the clay.
For a dancer when the shoe glided across the floor and the choreography
had been noted and recorded. These are but a few examples of expression
fixed within a tangible medium which give rise to the existence of copyright.
II. How Does The Law Protect Copyright?
Copyright protection is as old as the birth of our Nation. The Framers of
the Constitution delegated to the national government the authority to enact
laws for the protection of copyrights. Specifically, Article I, Section
8, Clause 8 of the Untied States Constitution empowers the Congress to promote
the progress of science and useful arts, by securing for limited times to
authors and inventors the exclusive right to their respective writings and
discoveries.
The philosophy behind copyright protection was to encourage individuals
to create literary works and works of art by ensuring economic gain. In
previous times patrons such as ruling monarchies, institutionalized religions,
and wealthy merchants allowed authors and artists to create. However, the
Framers believed that the protection of the law for a finite period would
provide economic gain for authors and artists and thus encourage hours of
creative effort. This in turn would promote and advance the public welfare
by allowing literature and the arts to flourish and bring recognition and
notoriety to authors and artists.
Today, copyright protection is more elaborately set forth in Title 17 of
the Untied States Code. In particular, protection is afforded to authors
of original works of authorship including literary, dramatic, musical, artistic,
audio-visual and certain other intellectual works. This protection is available
to both published and unpublished works. Section 106 of the Copyright Act
generally gives the owner of a copyright the exclusive right to do and authorize
others to do the following:
To reproduce the copyrighted work in copies or phonorecords;
To prepare derivative works based upon the copyrighted work;
To distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or lending;
To perform the copyrighted work publicly, in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and motion pictures
and other audio-visual works; and
To display the copyrighted work publicly, in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and pictorial, graphics,
or sculptural works, including the individual images of a motion picture
or other audio-visual work.
It is unlawful for anyone to violate any of these rights provided by the
Copyright Act to the owner of a copyright. However, these rights are not
unlimited in scope but rather are limited by the doctrine of Fair Use set
forth in Section 107 of the Copyright Act.
III. What Is Fair Use?
As previously discussed, the United States Constitution and Title 17 Section
106 and 106A of the United States Code provide certain protections to the
owner of a copyright. However, Section 107 of the Copyright Act carves out
a safe zone in which individuals can engage in the fair use of a copyrighted
work and not violate the law. Specifically, Section 107 states that notwithstanding
the protections afforded by the Copyright Act the fair use of a copyrighted
work including such use by reproduction in copies or phonorecords or by
any other means specified by that section, for purposes such as criticism,
comment, news reporting, teaching, scholarship, or research, is not an infringement
of copyright.
In determining whether the use made of a work in any particular case is
a fair use the factors to be considered shall include:
The purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes.
The nature of the copyrighted work (e.g. the worthiness of the expression
and creativity of the work seeking copyright protection);
The amount and substantiality of the portion used in relation to the
copyrighted work as a whole (e.g. the quantity as well as the quality and
importance of the copied material must be considered); and
The effect of the use upon the potential market for or value of the
copyrighted work.
There are a number of court cases which give context to the application
of the Fair Use test. For more information see the cases listed under Title
17 of the Untied States Code Annotated Section 107 or search the web and
look for Fair Use.
You will want to read carefully the case involving the Rap Music group 2
Live Crew in which the Supreme Court of the United States reviewed the doctrine
of Fair Use in detail.
IV. Copyright And The Internet .
Can you recall the first time you sat at your computer and double-clicked
the icon which launched you onto the Internet: destination Cyberspace. For
some it was akin to lift-off at Cape Canaveral. However, for others the
Internet looms like Darth Vader and the Empire as the largest threat to
copyright protection since the Framers wrote the constitutional provision
establishing the protection of copyrights.
Many writers have noted that we have progressed through the Industrial Revolution
and contemporary times to the dawn of the Information Age. Herein lies the
initial excitement of the Internet in which individuals throughout the world
can use their computer to electronically teleport them to the information
which they seek regardless of where they geographically live. The Internet
thus becomes a harbinger of a return to America's Cottage Industries. It
allows individuals to compete with large organizations but it also raises
issues of destabilization and the undermining of copyright protection.
Navigating through the constitutional meteors which represent a collision
course between the Internet (First Amendment freedoms) and copyright protection
involves a brief review of the two theories upon which each is based. Specifically,
the Internet's main theory is that information wants to be free therefore
it should be released unfettered to the user. Additionally, it is viewed
by many as the ultimate public forum; thus, embodying the core of America's
First Amendment freedoms.
Alternatively, the Framers of the Constitution and the subsequent Congresses
of the United States have stated that the theory of copyright protection
is to provide some incentive through economic gain for a period of time
to encourage authors and artists to expend the creative energy and labor
needed to produce a literary work or work of art. In fact, many point to
starving actors, musicians, artists, writers, and poets and ask: How much
worse would it be without copyright protection?
Thus, these two theoretic constitutional meteors appear to be on a collision
course because nano-second computer transmissions, electronic reproduction,
and image and text manipulation are changing the way information is treated
notwithstanding that virtually everything on the Internet invokes some form
of copyright protection. This is so because it is commonly accepted that
when an idea is expressed by logging it onto a computer such that it can
be read on screen and/or printed it has met the copyright requirement of
being fixed in a tangible medium.
Thus, E-mail, news stories, music, software, Usenet messages, novels, screenplays,
graphics, and other multi-media are subject to copyright protection.
Another major issue is who should be held culpable for copyright infringement
if copyright laws have been violated on the Internet. Should it be the individual
or should it be the Internet Access Provider or both? Also, there is the
issue of enforcement which could be vexing and very costly at best as the
more skilled copyright infringing hacker darts in and out of the blackholes
of Cyberspace.
The legal argument to exonerate Internet Access Providers from culpability
is that they must either act unlawfully or know about the allegedly infringing
activity. Their response is that given the passive nature of the provision
of access to the Internet and the inability of any provider to monitor,
screen, or control the voluminous communications sent by its subscribers,
Internet Access Providers will seldom take the requisite action or have
the requisite knowledge to establish a statutory violation. For more information
on this subject, see the case of Religious Technology Center v. Arnold Pagliarini
Lerma, Digital Gateway Systems, The Washington Post, Marc Fisher and Richard
Leiby litigated in the United States District Court for the Eastern District
of Virginia Alexandria Division.
V. In Search Of Equilibrium: The Information Infrastructure Task Force.
During the early years of the Clinton Administration, President Clinton
summoned the Information Infrastructure Task Force to scrutinize the developments
of burgeoning micro-technology and the impact that such electronic commerce
would have upon the Nation. In particular, one of the IITF's many tasks
was to answer questions of how micro-technology would impact intellectual
property rights in an age where text and images can be manipulated and transmitted
at warp speed. You might ask: What's that got to do with me? The answer
is a lot.
With the advent of the Internet the way in which America receives its information
(e.g. newspapers, magazines, books, television shows, movies) is rapidly
changing. A time has come in which American's love for television will involve
controlling the remote to search the Internet for the information or entertainment
pleasure of your choice. Case in point, Gateway 2000's Destination series
big screen personal computers. Certainly, the large movie studios will be
hesitant to distribute movies on the National Information Infrastructure
if there is not adequate or sufficient copyright protection.
Thus, in searching for the equilibrium the IITF indicated that there was
no need to scrap the existing Copyright Act but rather to meticulously and
carefully amend the Act to incorporate the latest changes in technology.
Toward that end the IITF drafted a White Paper outlining, defining, and
addressing the myriad of issues. Those interested in being on the cutting
edge should access the White Paper at the IITF Web Server.
VI. Navigational Flight Rules For The Individual User .
Obviously, the issues involving copyright and the Internet are difficult
and will not be decided in their entirety in the immediate future. The two
constitutional theories between copyright protection and the First Amendment
when mixed with the latest technology amount to constitutional meteors on
a collision course.
In order for the individual user to navigate a flight path to the equilibrium
I have set forth a list of some following flight rules:
Although developments in our laws have eliminated the need to place
a copyright notice on any work that you create it is highly recommended
that you include a notice on all your literary, artistic, electronic, (e.g.
E-mail, Usenet) and multi-media work to indicate to the world that you created
this work. This is true whether the work is personal but even more so if
it is intended to have commercial value. To place a Copyright notice on
your work use any of the following:
Remember you may have created something which initially you did not
intend to have commercial value but it could take on commercial value at
a later date. Therefore, put your return E-mail address on anything you
attach a copyright notice to so that the commercial market can contact you.
You are the owner of your created work as the author of the expression
fixed in a tangible medium unless you have transferred ownership by formal
written transfer or within the scope of your work as an employee under what
is referred to as a work-for-hire agreement. MAKE SURE THINGS ARE IN WRITING.
When sending your expressions through the Internet into Cyberspace
state with particularity the ground rules for its use and reproduction.
Remember expressions, art, music, literary works and other multi-media
that you find on the Internet are probably the copyrighted work of someone
else. Therefore, a general rule to follow is that personal use may be permissible
(See the Sony case decided by the United States Supreme Court involving
the VCR) but other uses must be within the doctrine of Fair Use or you must
first obtain the owner's permission.
Never upload any copyrighted work or any work which you believe may
be copyrighted to the Internet or a bulletin board without first obtaining
written permission from the owner.
When in doubt as to whether something is in the public domain (meaning
not under the protection of copyright law) or is copyright protected then
assume it is copyright protected and proceed accordingly until you discover
otherwise.
It may be possible to violate copyright laws when creating a WEB page
by borrowing html Source Code, Link Lists, Original Material and Licensed
Material without first receiving prior written permission. For an interesting
discussion of this topic and other breaking issues in the area of copyright
visit Webmaster P. J. Benedict O'Mahoney at The
Copyright Website.
The Berne Convention Treaty and various States throughout our country
have come to recognize the moral rights of authors and artists (e.g. musicians,
actors, painters, sculptors ...). Therefore, when you have uploaded your
creative work onto the Internet beware of the possibility that some dark
forces within Cyberspace may alter the moral integrity of your creative
work. ASSERT YOUR MORAL RIGHTS!
For writers who intend to market their creative work to on-line publishers
all of the foregoing flight rules are crucial for success in Cyberspace.
For a detailed analysis of recommended principles to be followed by writers
and publishers in contracts for electronic book publishing contact The National
Writers Union, 873 Broadway, Suite 203, New York, New York 10003 - Phone
(212) 254-0279.
Finally, it is essential to be a practitioner of "Netiquette"
which is simply a course of etiquette to be followed while using the Internet.
Search Netiquette on-line for a detailed list. Remember technology is changing
rapidly and the "golden rule" must apply if we are going to offer
a continuing incentive for those in the arts to produce future masterpieces
which afford us pleasurable diversion from the pressures of the workaday
world.
