Authorship and Property
The emergence of the Internet has challenged the
conceptual base of intellectual property. Authorship and property are two
examples of them. It is with the print revolution that the expression of
ideas can be fixed in the form of printed commodity for the first time,
something that could be owned or sold in a mass market. Still, ideas themselves
are not property at all unless they are fixed in certain forms; that is,
if they are created as part of the process of human communication without
a fixed form, they are not protected at all by any copyright law.
However, as the Internet was introduced, it looks
as though the concepts such as authorship and property should be redefined.
For the Internet has integrated two different aspects of communication:
interpersonal communication and mass communication. In addition, the capacities
of the Internet to "intertextualize" and compile information from multiple
sources into new product also turns authorship and property into controversial
concepts.
Principle of Balance
One of the fundamental issues about the copyright
regulation is how to define the principle of balance between authorship
and readership in the digital era. This issue, in particular, has been
seriously raised since Senate 1996 Bill was proposed. Both Senate's and
House Bills have been criticized as breaking up such balance by the groups
which belong to the Internet access providers. The Erickson's criticism
(1995) is one of the example which shows the concern of the Internet access
provider: "Our primary concern about H.R. 2441 in its present form is that
it fails to sustain the principle of balance, placing a nearly exclusive
emphasis on the protection for copyrighted content, and doing so at the
expense of promoting innovation, privacy, education and public information
access. "
Transmission
The Department of Commerce Green Paper, referred
to as "Intellectual Property and the National Information Infrastructure"
has proposed a new right within copyright, called transmission. The Green
Paper defined transmission as to "To 'transmit' a reproduction is to
distribute it by any device or process whereby a copy or phonorecord of
the work is fixed beyond the place from which it was sent.". That is,
the Clinton administration considered transmission right as an analog of
copying in the print environment.
However, there has been a debate on whether a digital
transmission is a distribution of a copy to the public. If every digital
transmission is defined as including loading of a material on the Internet
into RAM, mere browsing can be interpreted as an infringement of copyright
law. So many people worried that public access to information would be
seriously restricted if the Government's definition of transmission is
applied as it is.
There have been various responses to the Government's
definition of transmission. Copyright owners were willing to accept the
Government's proposal. They believe that, with the Government's proposal,
they will be able to control all performances of copyrighted works, not
just the public performances and public displays that the existing law
grants to copyright owners. On the other hand, copyright users, especially
schools and libraries, argue that it is not appropriate to regard every
transmission as regulated by copyright, and the government's idea can restrict
seriously the primary purpose of copyright; to promote Sciences and Arts.
Fair Use
The only mechanism to protect copyright user's right
in the Copyright Act has been the sections of Fair Use. Fair Use has been
a copyright user's right to use copyrighted materials without permission
of copyright holders. Section
110 (5) of the Copyright Act of 1976 says that:
notwithstanding the copyright holder's exclusive
rights, it is not an infringement to "[communicate] a transmissioin embodying
a performance or display of a work by the public reception of the transmission
on a single receiving apparatus of a kind commonly used in private homes,
unless a direct charge is made to see or hear the transmission; or the
transmission thus received is further transmitted to the public.".
However, a basic problem of the Fair Use right is
that it is based on unclear and subjective terms. According to the Copyright
Act, Fair Use is determined by (1) the purpose and character of the use
(whether such use is of a commercial nature or is for non-profit educational
purpose); (2) the nature of the copyrighted work; (3) the amount and substantiality
of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work. However, such terms as "purpose of use," "nature of the
work," "amount and substantiality of the portion," or "effect of use" are
not clearly defined, so every case about Fair Use has to be determined
by a subjective decision of court. Worse, it might be more difficult to
determine if a particular case is under the Fair Use if we consider the
contents transmitted through the Internet.
Considering the introduction of the Internet, some
are arguing that the cases of Fair Use should be expanded since the electronic
media environment where "Hyperlinking" and "inlining" are possible. On
the other hand, others, most of whom represent the interests of program
providers, maintain that Fair Use becomes meaningless in the Internet and
should be minimalized or eliminated to protect copyright in digital environment
where it is very easy and fast to copy any materials.
Policing; Service Provider Liability
One of the copyright issues in the Internet, raised
by the copyright holders, is the liability of the Internet providers for
copyright infringement by their users; they argue that every on-line service
provider is already liable for all copyright infringement committed by
its users, regardless of whether the service has reason to know about the
infringement or takes reasonable steps to ensure that it won't occur (Samuelson,
1996). In other words, the content owners are looking for a certain level
of responsibility and participation from access providers to police [copyright]
violation. However, the Internet Access Providers are responding to such
request by maintaining that the content providers "want service providers
handcuffed to unrealistic policing efforts, while realistically concerned
about protection of their works" (Voorhees, 1996).
[Back to Top]
Collings, A. (May 11, 1996). Legislation aims to extend copyright protection
to cyberspace. CNN
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The Library of Congress (November 7, 1996). Comment on the Library of
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Loundry, D. J. Revising the copyright law for electronic publishing.
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http://www.brown.edu/Facilities/University_Library/general/copyright/CopySumm.html
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