“The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms. “1 Technological advancements such as the introduction of the printing press and other technological inventions such as radios and television broadcasting, the internet, compact discs (CD) and digital versatile disc (DVD), ‘has affected both the form and substance of intellectual property rights’. 2 The main Intellectual Property Right (IPR) that WIPO is referring to is Copyright.
The main aim of my work is to demonstrate using historical examples how the law of copyright has evolved in order to cope with the introduction of new technologies and particularly to deal with the ground-breaking file-sharing of the digital era of the internet. Moreover, a critical evaluation will follow as to how effectively the law of copyright has responded to the issues raised by these developments, emphasizing on the copyright issues raised by the infamous file-sharing cases of Napster3 and Grokster.
4 A suitable starting point would be to introduce you to the basic concepts of copyright law by using the United Kingdom (UK) legislation as a basis (all members of the European Union (EU) as-well the United States (US) have similar legislation as will be seen further below). ‘Copyright is a property right that subsists in certain specified types of works as provided for by the Copyright, Designs and Patents Act 1988 (CDPA 1988).
‘5 The main protected works as provided by the CDPA 1988 include original literary work (“any work, other than a dramatic or musical work, which is written, spoken or sung”),6 original dramatic work and original musical work,7 original artistic work8 including graphic work and photograph, film,9 sound recording10 and broadcast. 11 The copyright owner has the exclusive right of selling the copies of the work, broadcasting it, making copies of it, to rent or lend the work to the public, to perform show or play the work in public, to communicate the work to the public or to make an adaptation of the work.
12 Copyright law can restrict such acts. The copyright owner can also authorise others to do such acts. 13 Where a person performs such an act without the consent or license of the copyright owner, the owner can sue for infringement of his copyright and claim for remedies such as damages or an injuction. 14 Moreover, multiple copyrights can exist in relation to one piece of work, for example an mp3 file contains a literary work (the words), a musical work (the music) and a sound recording.
Therefore, for example in a dispute over file-sharing on the internet there can be many claimants such as the creators of the material and a big media company (that made the sound recording). 15 The physical medium is not an important issue in relation to a copyright. Therefore, a copyright can subsist on paper or on disk or on the internet. ‘A work does not have to be a particular type of physical thing but can be a digital artefact. ’16 Copyright protection is given to ‘authors’.
The CDPA 1988, s.9 (1) provides that the ‘author’ of a LDMA (literary, dramatic, musical or artistic work) is ‘the person who creates the work’. In cases of works such as a sound recording where there is no obvious ‘creator’ the author is usually the person who makes the arrangements necessary for the production of the work. For example the CDPA 1988, s. 9 (2) (a) states that in the case of a sound recording the producer is deemed to be the ‘author’. Moreover, we will now briefly look at copyright infringement. Infringement is the performing of any of the ‘restricted acts’ mentioned above.
There are 3 forms of infringement: “primary infringement” (performing the acts mentioned above without the consent or license of the owner) governed by ss. 16-21 of the CDPA 1988, “authorising” another person to do any of the ‘restricted acts’ governed by s. 16 (2) and various forms of “secondary infringements” governed by ss. 22-26. The fundamental right under copyright law is the right not to have your work copied. 17 It is a copyright infringement to copy a work or any substantial part of it, as s. 16 of the CDPA states.
In addition, digital copies are also caught; data copied to and retained on a disk, data communicated over the internet and data held temporarily or transiently shown on a screen or through a browser. Furthermore, copyright protection for LDMAs and films lasts for the life of the author plus 70 years and for other types of work the term for which copyright protection lasts is generally 50 years from the creation or publication of the work. 18 To continue, it is very important to emphasize that Copyright laws are similar throughout the whole world as Intellectual property law has been set upon an international stage.
19 The European law develops within the framework of International Treaties and conventions which aim for greater harmonisation of the laws relating to IPRs. 20 Some of the most important Conventions are: The Berne Convention 1886 (Paris Act of 1971) and the TRIPs agreement (on Trade-related Aspects of Intellectual Property Rights) 1994. With the introduction of these treaties and the harmonisation through directives such as the Directive 2001/29/EC ‘Copyright and related rights in the information society’ (‘InfoSoc’), there is an internationally fairly harmonised system of copyright law.
The UK laws mentioned above are mostly determined at European level with most countries having similar legislation. The vast majority of the developed nations are members of the international conventions, many of them which are administered by the WIPO. 21 As there is a fairly harmonised system of copyright law, case law and legislative developments in other jurisdictions can be influential outside their own territories but particular copyright disputes nevertheless must be fought out under the law of the state where the action is brought.