Is The Current Law Of Copyright Impeding The Free Movement Of Knowledge And Information Across Cyberspace?
Copyright is the indispensable remuneration for the creator’s work, by allowing every citizen to rightfully enjoy the fruits of their labour that created the work. It is considered as a theory which allows the production of works of added intellectual value be furthered by giving creators the assurance that the goods they create are protected. Copyright thereby ensuring the profitability and therefore providing a stimulus for creative investment. Users are granted several exemptions which convey the need for preserving such essential values as freedom of expression, the right to privacy, access to information and to culture and the dissemination of knowledge through education, research and access to libraries. This balance is nevertheless threatened by technological and legislative changes that have been enacted by the Information Society. Copyright is expanding, not only as regards the items protected but also as regards the area of protection. The issue of copyright in the Information Society is complex and has spawned an over abundance of legislation at both international and national levels. This article sets out to describe the main current developments in copyright and their implications for access to information in order to provide a tool for understanding what is essentially at stake.
Keywords: Copyright, Freedom of expression, Information Society, Intellectual value, Right to privacy.
The Environment is inhabited by knowledge, including incorrect ideas, which is in existing electronic form. It is connected to the physical environment by portals which allow people to see what’s inside, thereby to put knowledge in, to alter it, and to take knowledge out. Some of these portals are one-way (e.g. television receivers and television transmitters); others are two-way (e.g. telephones, computer modems).Most of the knowledge in cyberspace lives the most temporary (or so we think) existence. For instance, our voice, on a telephone wire or microwave, travels through space at the speed of light, reaches the ear of our listener, and is gone forever. But people are increasingly building cyber spatial “warehouses” of data, knowledge, information and misinformation in digital form, the ones and zeros of binary computer code. They storehouses themselves in a way to display a physical form (discs, tapes, CD-ROMs) but what they contain is accessible only to those with the right kind of portal and the right kind of key. 1The key is software, a special form of electronic knowledge that allows people to navigate through the cyberspace environment and make its contents understandable to the human senses which is in the form of written language, pictures and sound. People are adding to cyberspace for the purpose of creating it, defining it, expanding it at a rate that is already explosive and getting faster. Faster computers, cheaper means of electronic storage, improved software and more capable communications channels (satellites, fiber-optic lines) each of these factors independently add to cyberspace. But the real explosion comes from the combination of all of them, working together in ways we still do not understand. Cyberspace is typically the land of knowledge, and the exploration of that land can be a civilization’s truest, highest calling. The opportunity is now before us to empower every person to pursue that calling in his or her own way. The challenge is as daunting as the opportunity is great.2
The decentralized nature of Internet has makes it possible for any user to disseminate a work endlessly in the cyberspace through an end number of outlets, thereby giving rise to global piracy. Estimates of global losses from pirated books, music and entertainment software range into billions of dollars. The Internet in a way presents a troublesome situation for copyright holders as the users become mass disseminators of others copyright material and creates disequilibrium between the authors and users. 3The advent of digital technology, therefore presents legislators here with a choice: either expand or modify existing ‘old media notions’ or redefine the catalogue of restricted acts, taking into account the peculiarities of the new environment in multiple facets4.The Global computer based communications has cut across the territorial borders, thereby creating a new realm of human activity and undermining the feasibility and legitimacy of laws which is based on geographical boundaries. In this scenario the Digital technology has made copyright enforcement difficult to achieve. 5In the online environment, works such as videos, recordings of musical performances, and texts can be posted anywhere in the world, and it can be retrieved from databases in foreign countries, or made available by online service providers to subscribers located throughout the globe. Our system of international copyright protection, however, historically has been based on the application of national copyright laws with strict territorial effects and on the application of choice-of-law rules to determine which country’s copyright laws would apply. Such a network of national codes may have sufficed in an era when the distribution or performance of works occurred within easily identifiable and discrete geographic boundaries.6 However, “instant and simultaneous worldwide access to copyrighted works over digital networks by fundamentally challenges territorial notions in copyright” and complicates traditional choice-of -law doctrine because it is often difficult to determine where particular acts have occurred in order to determine which copyright law to apply 7.
The Internet is generating an enormous amount of “hype.” Whereas just a few years ago, the networks of global research and science computers were hardly an emerging topic of conversation, they are now the subject of rapidly growing interest and speculation . 8Usage is exploding. The Internet is said to be doubling in size every year and studies have projected over 200 million users by the year 2000. New possibilities are emerging for the way due to which we conduct all types of activities. Along with this growth, companies in some markets are moving to offer new services and struggling to create business models that work in the new environment. As society moves into the new and uncharted region of cyberspace, it is becoming apparent that legal regimes ranging from tariffs to privacy to intellectual property rights which will get affected.9
The Software Directive achieves a level of harmonization which is comprehensive, well structured, and protective enough that the Internet trade in software does not pose a threat to the functioning of the internal market. In fact, the combination of the harmonized regime of software protection with a greater interconnectivity between authors, users, and software firms in various Member States may make the emerging on-line market for software as a model for other products in the single market. For instance, the Software Directive harmonizes Member State software regimes across almost all major issues which arise in the area of software copyright. Application of the Directive to Member State laws should provide the same level of protection to the same programs .10 With originality requirements specified at a low hurdle and exclusive rights as well as well specified exceptions to those rights drafted in great detail, software copies which are infringing in one Member State should be infringing in all other Member States. Similarly, products which have legitimately borrowed ideas or interface specifications should be accorded the same privilege across countries. Furthermore, the Directive clarifies what type of contractual and licensing terms are permissible on a Community wide basis.11 Therefore, country laws should not provide variations in the favorableness of their contract regimes to avoid rights given in the Directive. Such sweeping harmonization leaves little room for laws which could act as a quantitative restriction as between Member States.
Beyond purely legal issues regarding potential restrictions to, or promotion of, a more unified single market, the practical effects of the Internet should also be recognized. While economic factors such as transportation costs and distribution channel relationships do not rise to the level of quantitative restrictions or discriminatory duties, as a matter of logic they make it easier for a local producer to supply manufactured products to consumers within their own country. De facto impediments to competitive parity in getting products to other intra-Community markets are substantially reduced in the networked context.12 Software products may be transported directly over telecommunications lines at almost no marginal cost. They can also be marketed and delivered directly from the supplier to the consumer.
As important for understanding what copyright subjects the Internet has the potential to affect is clearly recognizing what issues the Internet will not impact. In this regard, an entire range of issues which arise the context of software copyright will not be influenced by the Internet. Copyright, in simple terms, controls two different types of threats to right holders. On the one hand, copyright regulates competitive product development between manufacturers to ensure that competing products do not appropriate expression from software that is already on the market. This function sets the bounds of what level of idea borrowing is permissible.13 On the other hand, copyright also regulates the use and wholesale copying of works by pirates, private individuals and firms. Two widely debated software copyright questions have been the focus of much discussion in recent years, but should not be further complicated by the advent of the information society. The heated decompilation issue is one. This was the most intensively debated provision of the Directive. However, it will not be raised in terms of the Internet, because decompilation is primarily a policy issue about when a competitor can use your specific expression. Decompiling only requires one legitimately purchased copy of a program. No changes in cross-jurisdictional information transfer or the ease of anonymously transferring or copying a program should alter the basis for the policy debate.14
Whether copyright is a conceptually appropriate doctrine to apply to software is another issue which should not change because of the Internet. This too is a policy question of managing competitive product development between competing companies. Does it make sense to permit a company to study a product’s functioning and then independently write a program using wholly different expression to perform exactly the same function? The idea / expression distinction of copyright permits this, given the Directive’s approach of protecting software as a literary work. Whether this result of copyright makes sense has been, and continues to be, a topic of serious debate within the intellectual property community. . However, although these controversial areas can be avoided, the Internet does pose important and difficult issues for the other side of copyright protection by regulating private copying and piracy.15
One can evaluate the Software Directive’s effectiveness from both a formalistic perspective and a practical point of view. The Software Directive “will continue to work well for the information infrastructure.In general, this assessment is correct. However, from both a formal and a practical viewpoint, the Internet requires changes or clarifications of current doctrine. Recognizing and implementing these changes will facilitate improved protection for rightholders and a more certain environment for needed investment in the information society.
The main problem existing here is the attitude of the majority of Internet users: “if it is on the Internet, it’s free”. Historically the Internet has been populated by technologists who defend the “Information Wants to be Free” argument and claim the Internet is a shared public resource. This opinion collides with the “intellectual property should be highly protected” argument of the lawyers and of the “real world”. Many believe that any law regarding the Internet will have to take the unique characteristics of cyberspace into consideration . Others think that it is not necessary to view the world of the Net as different from the rest of the world . Still others think that electronic publishing is analogous to word-of-mouth communication, to which copyright was never applied .16
The Internet has begun to be used by software developers, resellers and licensors as an advertising medium and a distribution channel for their software. However, placing or allowing others to place software on the Internet dramatically increases the risk of infringement. It is even more problematic to vendors that choose not to distribute software products through the Internet. The groups dedicated to software piracy on the Internet use host computers to secretly set up stores of stolen software. The pirates then pass messages around the world so that other pirates can download the software.17The hosts’ administrators are normally unaware of this criminal use of their hosts. And since the entire operation may take no more than 24 hours, it is virtually impossible for law-enforcement officials to take steps to shut it down. Even where they are able to do so, it is virtually impossible to know where the next site will emerge. The SPA (Software Publishers Association) which represents the interests of its members from the software industry has been very active in the software piracy issue in the Internet. It has organized, in 1996, an Internet Anti-Piracy Campaign and has filed several suits against individuals who operate Web sites that offer copyrighted material. The SPA and is present in more than 60 countries.18
The Internet and the World Wide Web have brought their own copyright problems to the table. One off the more discussed is the linking right. Can it be a copyright violation to link to a web page against the explicit wishes of the owner of that web page? Most copyright experts generally believe that linking should not lead to copyright liability, because the mechanical operation of the hypertext link does not implicate one of the exclusive rights of copyright owners .Others have argued that uploading intellectual property to the Internet grants an “implied license” to link, that linking might be considered fair use, and that if an Internet site does desire to keep others from linking to some or all of its pages, a number of technologies are available to inhibit linking.19
Caching of files can occur both locally on the user’s client computer and at the server level. When a user requests a file that has been cached, the browser will deliver the file from the cache rather than retrieving a fresh copy over the Internet. But transferring from a permanent storage device to a computer’s random access memory constitutes copying for the purposes of copyright law .Offline browsers, software that automatically downloads some or all of an Internet site to the user’s computer, allowing the user to browse without having to wait for the delivery of each page, can be considered to infringe copyright law.20 The use of copyright images is one of the more usual copyright infringements in the Internet. First, one cannot scan pictures from magazines and post them to the Internet, neither can the images of one site be used on another site without authorization .The operator of the National Association of Fire Equipment Distributors (NAFED) was offered some clip-art and placed the images on the companies’ web page for anyone to download as a courtesy provided by NAFED, and advertised their presence .Music has also become the object of copyright infringement on the Internet. 21
The law as it applies to service providers is often not nearly so clear. On-line service providers argue that they cannot be held liable for infringement. But a strong argument can be made that if on-line service providers want the Internet to remain an essentially unregulated environment, they should be willing to assume greater responsibility for preventing copyright infringement. After all, on-line service providers are uniquely suited to help find, control, and prevent on-line infringement because they have direct contractual relationships with both subscribers and content providers.22 But the use of technologies like PICS (Platform for Internet Content Selection) to prevent or deny access to sites that are known to infringe third-party intellectual property rights can raise the spectre of censorship.
In Religious Technology Center v. Netcom On-Line Communications Services, Inc was the first one were service provider liability was discussed in court. Netcom provides Internet newsgroups to their clients. One of them, anonymously posted documents that the Church of Scientology (represented by the Religious Technology Center) thinks are secrets and protected by copyright. Netcom was sued for not having stopped the post of such documents and for not having cancelled the user’s account. The court decided that Netcom was not liable for direct infringement because it was “practically impossible” for Internet access providers to screen for infringement before information went through the system.23
Technology is available that will allow authors to mark and track their works on the Internet, protecting their property. Some techonolgies can be used before distributing the intellectual property to control or inhibit infringement of the works (pre-infringement); others to ensure payment prior to or at the time of a consumer’s use of the intellectual property (metering); and finally to identify infringements and thus enhance enforcement of intellectual property rights (post-infringement).24 One of the most promising technologies is digital watermarking – using a cryptographic technique called steganography to hide ownership and copyright information in a picture or text file. Rather than ensuring the authenticity or integrity of documents, as a digital signature or a digital seal does, a digital watermark aims to identify the origin, author, owner, usage rights, distributor, or authorized user of an image, video clip, or audio clip, even if the image or clip has been processed and distorted. Regarding the prevention of software piracy, the use of clearinghouses that implement ESD-based (Electronic Software Distribution) sales on behalf of vendors, is perhaps the most promising. 25
Where copyright is infringed, owner of copyright is entitled to sue for remedies including injunction, damages, profit of accounts and delivery up of infringing good. Copyright in a work which is considered infringed when a person without a license from owner or registrar of copyrights or contravening conditions of a license does anything the exclusive right to do which is the right of the owner as per the Act or permits for profit a place to be used for communication of work to public where such communication constitutes infringement of copyright in the work unless he was not aware and had no reasonable ground to believe such communication will be infringement of copyright. It also amounts to an infringement where a person makes for sale or hire or displays or offers for sale , or distributes for trade or to prejudicially affect the owner of copyright or by way of trade exhibit in public or import into India infringing copies of work (excluding one copy for personal use of importer).26 As registration is not compulsory , suits for infringement can be filed even if plaintiff has secured no registration of the work. Civil remedies available to owner of copyright are also available to exclusive licensee. Electronic contracts are considered legally valid in most jurisdictions such as India and electronic licensing or assignment is also legally valid.
Section 52(a) of Copyright Act, 1957 provides for exceptions to infringement termed as “ Fair dealing”. Fair dealing with literary , dramatic , musicals’ or artistic work ( not being a computer program) for purpose of private use, including research , criticism, review, and as per Section 52 (b) for purpose of reporting current events in a newspaper, magazine, or similar periodical, or by broadcasting or cinematographic film or by means of photographs. As per Section 62 of Copyright Act, a suit or civil proceeding will be filed for infringement of copyright in district court having jurisdiction to hear the case. The jurisdiction under Civil Procedure Code will include place of residence where plaintiff resides or carries on business or personally works for gain. 27 Section 63 of the Copyright Act provides the punishment for offence of copyright infringement. Any person who knowingly infringes or abets the infringement of the copyright in a work or any other right conferred by the Act is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and fine which shall not be less than Rs. 50,000 but may extend to 2 lacs. On second and subsequent conviction imprisonment is for a term not less than one year but which may extend to three years and fine which will not be less than one lac but may extend to 2 lacs. 28Punishment may be reduced if infringements are not made for commercial gain. As per Section 63 B , knowing use of infringing copy of a computer programme is punishable with imprisonment for term not less than 7 days but may extend to three years and fine not less than Rs. 50,000 but which may extend to Rs. 2 lacs. Punishment may be reduced if infringements are not made for profit or gain.29
Section 69 provides that if an offence is committed by a company then every person who at the time offence was committed was in charge of and responsible for conduct of business of company shall be deemed guilty of such offence and liable for punishment unless if he proves offence was committed without his knowledge or that he exercised due diligence to prevent commission of such offence 30.One of the most cited lawsuits worldwide for digital copyright infringements is of the Napster Case, whereby the plaintiff was sued by the
defendants, for P2P file sharing. In this case, Napster provided software, whereby the user can share media files (MP3 Files) stored in his computer to other user of Napster. Since the filing of the Napster Inc case, the music companies have been seeking USD 1, 00,000 for each copyright-protected song downloaded using Napster. 31There was a settlement between the parties, whereby Napster had to give a third of all future profits to the settling parties, and Napster Inc. was shut down in 2000. Recent example of infringement in electronic publishing industry is that of the class action lawsuit against Google and its online library feature, wherein Google settled royalty dispute with authors and publishers of books available in its online library for free access which allowed free downloading which directly infringed their copyrights. Another significant Indian case, Gramaphone company of India vs Super cassette Industries ltd, the court took the view that plaintiff had infringed the copyright of plaintiff in sound recordings , wherein a remix version of a song was being sold by defendant on the internet or as mobile tune .32The court observed that right of a copyright holder in a recording version to sell , give on hire or offer for sale or hire to public or distribute is not curtailed by the format in which it may be sold online.
The Internet is becoming a key platform for commerce that is increasingly happening between buyers and sellers located in different countries, thereby driving international trade. Additionally, as the Internet enables cross-border data flows which has underpinned the global economic integration and international trade. For instance, cross-border data flows are now intrinsic to commerce, from Internet-based communications like email and platforms such as eBay and Facebook that bring buyers and sellers together, from the financial transaction to purchase the product in other countries to the downloading of the goods and services. 33Despite the growing significance of the Internet for international trade, governments are restricting the Internet in ways that reduce the ability of businesses and entrepreneurs to use the Internet as a place for international commerce and limits the access of consumers to goods and services. Some of these restrictions are being used to achieve legitimate goals such as preventing cybercrime or restricting access to morally offensive content, but may be applied more broadly than necessary to achieve those objectives. In other cases, Internet restrictions are targeting foreign businesses and the sale of goods and services online in order to benefit local ones. Such Internet restrictions are discriminatory and harm international trade.34 Accompanying the growth of the Internet has been the ability for people, businesses and governments to change the way data is collected, shared and used.
The flow of information across borders also supports R&D efforts as researchers around the world are able to share data, design experiments and analyze the results in a more collaborative and real time experience. Cross-border data flows have also revolutionized the finance industry. 35Consumers can access their accountants globally and businesses around the world can access market-leading financial services from New York, London and Hong Kong. Innovative companies are also taking advantage of the ability to move data globally and increasing the access to capital for start-ups. For instance, a company called Micro place sources investors for projects around the world that aim to alleviate poverty. 36Another business called 33 needs connects investors with small-scale entrepreneurs in developing countries. The ability to move data seamless across-borders has also enabled the development of data intensive applications such as video and TV streaming, health and education outcomes and virtual conferencing.37 The development of cloud computing promises a further step-change in how data is used. Different parties in the cloud can contribute inputs, outputs, analytics, and execute other kinds of actions. The result of this distributed computing environment is to permit dramatic flexibility in processing decisions on a global basis. Cloud computing allows users to locate software and infrastructure like servers and storage in the cloud, benefiting all businesses by reducing costs while providing access to cutting edge computer services.38
Copyright and fair use are confusing subjects. The issues can be obscure, vague or puzzling. Many people think that if something is available on the Internet, not used in order to make money, or out of print, then it’s OK to use it any way they want to. On the other hand, sometimes people think that they can’t use copyrighted work at all without permission. Neither view is correct. However, an increasing number of people want to provide others with the right to use their own work without charge or requiring permission. 39Copyright law is a “limited monopoly” which is meant to encourage creativity and the production of knowledge. It gives a copyright owner the right to publish or perform an intellectual or cultural creation, and receive money for it. It has important limitations, including its duration. Every intellectual and cultural creation is protected as soon as it is produced. Some things cannot be put under copyright, such as facts, ideas, and languages: only actual expressions or presentations words, images, etc can be copyrighted. Fair use is a vital part of copyright law. It allows for circumstances in which people may use or reproduce material without asking permission or paying a fee.40 It has been rightly observed that has observed that without the right to fair use, copyright would unconstitutionally restrict freedom of speech; scholarship would grind to a halt without it. There are no sharp rules or even rules of thumb for fair use: the concept is intentionally flexible. Fair use involves four major factors: 1) the purpose and manner of use; 2) the nature of the work used; 3) the amount used; and 4) the effect on the original work’s market. Many people consider the first factor called transformative uses the most important. The amount used needs to be appropriate for that purpose (which sometimes means the entire work). “Transformative” is a broad term that can include the type of audience, the context, and the reasons for using the material. Educational or scholarly use is often but not always fair use: all four factors still apply.41
The central event of the 20th century is the overthrow of matter. In technology, economics, and the politics of nations, wealth which is in the form of physical resources has been losing value and significance. The powers of mind are everywhere ascendant over the brute force of things. In a First Wave economy, land and farm labor are the main “factors of production.”42 In a Second Wave economy, the land remains valuable while the “labor” becomes massified around machines and larger industries. In a Third Wave economy, the central resource a single word broadly encompassing data, information, images, symbols, culture, ideology, and values is actionable knowledge. As humankind explores this new “electronic frontier” of knowledge, it must confront again the most profound questions of how to organize itself for the common good. The meaning of freedom, structures of self-
government, definition of property, nature of competition, conditions for cooperation, sense of community and nature of progress will each be redefined for the Knowledge Age just as they were redefined for a new age of industry some 250 years ago.43
The bio electronic frontier is an appropriate metaphor for what is happening in cyberspace, calling to mind as it does the spirit of invention and discovery that led ancient mariners to explore the world, generations of pioneers to tame the American continent and, more recently, to man’s first exploration of outer space. But the exploration of cyberspace brings both greater opportunity, and in some ways more difficult challenges, than any previous human adventure. The Third Wave has profound implications for the nature and meaning of property, of the marketplace, of community and of individual freedom. 44As it emerges, it shapes new codes of behavior that move each organism and institution, family, neighborhood, church group, company, government, nation which is inexorably beyond standardization and centralization, as well as beyond the materialist’s obsession with energy, money and control. Turning the economics of mass-production inside out, new information technologies are driving the financial costs of diversity both product and personal down toward zero, “demassifying” our institutions and our culture. Accelerating demassification creates the potential for vastly increased human freedom. It also spells the death of the central institutional paradigm of modern life, the bureaucratic organization.45
The information and communication society has gone through major and unexpected developments over the past decade, which raise new social, economic and legal issues. The impact of new technology on research, teaching, access to culture and to information, the transmission of knowledge which are the key elements of UNESCO’s [United Nation Economic Social Cultural Organization] mandate is unprecedented.46 One of the essential challenges presented by what has come to be referred to as the Information Society is that of building a balanced and coherent legal framework that takes account of the change in the economic and socio cultural model while at the same time safeguarding fundamental rights and freedoms in the digital world. One copyright relies on balancing the interests of protecting created works and their creators and guaranteeing public interest and fundamental freedoms.47 This balance derives precisely from one of the basic principles of copyright, which is to promote progress in the arts and sciences and to spread culture. All copyright systems are generally based on the foundations and goals, even if the relative importance of a given goal may vary in a given legal system.
The threats to the transfer of knowledge and access to informational and cultural content are considerable. UNESCO has a major role to play in this debate. 48Within this framework, there are three main principles which, in keeping with the above-mentioned concern for balance, may serve as guidelines for States in adapting copyright to the digital age:
2. Access to information and knowledge are the two basic principles underlying the creation and development of the Information Society and of electronic networks. The digital age cannot deny its roots and must therefore continue to benefit education, research and the transmission of knowledge.
3. The protection of creators is crucial to the dissemination of knowledge and culture. In so far as this protection is threatened on digital networks, it must be adequately taken into account. It is however, rights to take into account not only the legitimate interests of creators, artist-performers and producers, but also the interests of users and of society as a whole.49
Some economists and privacy advocates have proposed giving individuals property rights in their personal data to promote information privacy in cyberspace.50 A property rights approach would allow individuals to negotiate with firms about the uses to which they are willing to have personal data put and would force businesses to internalize a higher proportion of the societal costs of personal data processing. However, granting individuals property rights in personal information is unlikely to achieve information privacy goals in part because a key mechanism of property law, namely, the general policy favoring free alienability of such rights, would more likely defeat than achieve information privacy goals. Drawing upon certain concepts from the unfair competition-based law of trade secrecy, this article suggests that information privacy law needs to impose minimum standards of commercial morality on firms engaged in the processing of personal data and proposes that certain default licensing rules of trade secrecy law may be adapted to protect personal information in cyberspace51
In any circumstances, we wanted to explore whether innovative educational uses of digital technology were hampered by the restrictions of copyright. We found that provisions of copyright law concerning the educational use of copyrighted material, as well as the business and institutional structures shaped by that law, are among the most important obstacles to realizing the potential of digital technology in education. 52This paper builds on four detailed case studies of initiatives that have encountered such obstacles. Each of these initiatives is moving forward, but only by fighting against a copyright related system that instead should be helping educators accomplish their goals. The four case studies are:
11.1. A plan to use social networking software to help new social studies teachers interact and share classroom resources, which confronts copyright problems when teachers incorporate third party content into their materials;
11.2. The need of film studies professors to bypass encryption on DVDs – likely in violation of federal law in order to show selected film clips to their students;
11.3. An effort to make a digital database of hard to find but important American music available on college campuses, which encountered massive obstacles in the rights clearance process;
11.4. The shortcomings of special statutory provisions intended to benefit public broadcasters, but limited to over the air broadcast so that they have become nearly irrelevant as the need to distribute content on multiple digital platforms increases. 53
There is now a voluminous international literature on copyright law, policy and theory. Yet despite its apparent diversity, much of this commentary (particularly the very large proportion that emanates from authors based in the United States) is underpinned by the same unquestioned assumption: that some version of economic efficiency – the achievement of which involves balancing the social costs of activities (such as creating cultural artefacts and controlling how these are used) against the benefits of those activities is the crucial, if not the only, criterion for evaluating both the copyright system and the field that it regulates.54 Commentators may have different understandings of how costs and benefits should be measured, and of how private costs and benefits can be made to match up with social costs and benefits, but the idea that a cost-benefit equation is the acid test of defensible analysis and policy in this area is rarely challenged.55Amongst the more overtly committed of law and economics scholars, this general idea tends to be invoked in relation to a cluster of rather more technical categories of economic analysis, and some of these are notably the concepts of public good and externality which are particularly relevant to the project of explaining, and prescribing for, copyright law in economic terms. A property right is a mechanism (though not necessarily a legal mechanism) by which a would-be non-payer can be denied use of the goods to which the right pertains unless the right-holder’s price is paid. Instituting property rights thus enables the internalisation within a market in valued uses of valued goods of ‘external’ benefits formerly accruing to users. Consequently, the market price for these goods and services will be driven down. Therefore it is well understood that copyright is a legally enforceable property right that is vested in the first instance in the originator of certain categories of information good (‘works’), and subsists in relation to them. It gives to the originator exclusive legal control over certain acts in relation to the work not as of use as such, but only certain acts of replication and repetition .56
A copyright is in fact a bundle of discrete rights, each relating to a different act. To be effective, the rights in the bundle must be enforced through the courts, which can either enjoin unauthorised uses or award monetary damages when infringements cannot be enjoined. The economic logic of this structure can be represented as organised around the assumption that information goods as public goods are exceptionally easy to replicate and to repeat.57 If the originator is unable to invoke a legal right to prevent the copying of his or her work, competitors have an incentive to make replications and repetitions available to consumers by means, respectively, of delivery goods (eg books) and services (eg film showings) incorporating these as long as the market price for these delivery goods and services is greater than the marginal cost of producing them (eg the cost of printing each additional copy of a book). 58 However in that event, the originator of the work or the investor who has paid for the right to produce commodities incorporating that work will be unable to price its own delivery goods and services at a level yielding an adequate return on the investment in the work.
Thus Copyright is one of the stones in this edifice, and is probably one of the foundation stones. Content in the digital age will to a great extent be made up of works claiming copyright protection. However, the digitization and circulation of works over networks such as the Internet means that low-cost, high-quality copies can be made quickly, and these copies can also be sent to many other people around the world, irrespective of borders. Furthermore, digital works are easily altered, or even falsified, which means that there are many potential threats to the moral right of authors. 59Given these facts, it is not surprising that copyright is of the first areas to have attracted the attention of the international community. Copyright is an instrument of cultural policy which is also designed to support and regulate the spread and movement of ideas and of culture. So considered, authors’ rights and the limitations on those rights are the two levers of policy. As a result, all copyright coverage grants a monopoly to the creator based on a compromise between creator’s interests and the interests of society at large, which demand the free movement of ideas, information and commercial exchange. Inherent therein is the idea of a social contract between the creator and society. Many copyright principles embody this concern for balance. In a competitive market, the market price will be that of the lowest-cost producer, and copiers of works will face lower average production costs than investors in works, if only because copiers do not have to pay for the use of the work. As a result, those who would have invested in works may turn to other activities that are better recompensed, even though social welfare would have been better served by their investing in creating and/or disseminating works.60
1. Cyber Harvard available at https://cyber.harvard.edu/publications/2006/The_Digital_Learning_Challenge
2. Shashank Pathak, Information and Technology (Intermediaries Guidelines) Rules, 2011: Thin Gain with Bouquet of Problems | Manu Patra | Pg.1, Pg.5, (2012).
3. Gulla, R. K. (2007). Digital Transformation of Copyright Laws and the Misty Indian Perspective, Icfai Journal of Intellectual Property Rights, 6(3), 1-26.
4. Ijhssi organization available at http://www.ijhssi.org/papers/v2(4)/version-3/B240615.pdf
5. Austin, Graeme W. (1999). Domestic Laws and Foreign Rights: Choice of Law in Transnational Copyright Infringement Litigation, Columbia – VLA Journal of Law & the Arts, 23, 1-46.
6. Impact of copy right available at http://archive.cmsimpact.org/sites/default/files/PRINTABLE_ICA_CODE.pdf
7. Geller, Paul E. (2000). International Intellectual Property, Conflict of Laws and Internet Remedies, European Intellectual Property Review, 22 (3), 125 -153.
8. Holleyman, R., The impact on Intellectual Property: Jurisdiction, Enforcement and Dispute Resolution | World Intellectual Property Organization (WIPO) | pg.4 (1999).
9. Czarnota, Bridget and Robert J. Hart. Legal Protection of Computer Programs in Europe–A Guide to the EC Directive. London: Butterworths (1991).
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55 Wendy Gordon has recently noted that ‘[t]he most profitable lines of analysis for copyright … have been drawn from economics, where the most influential writing has so far come out of the United States’
(W. Gordon, ‘Intellectual Property’ in P. Cane and M. Tushnet (eds) The Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003) 617-646, 624.
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