A Web Developer’s Guide to Copyright and Intellectual Property Issues in Cyberspace

by
Karen L. Kranack

Digital media are a marvel of reproducibility. Never before have media been so easy to replicate by a consumer, which brings with it the potential danger for depriving an author of compensation for work posted on the World Wide Web. Perfect copies of images, text, video and sound are only a mouse-click away. Not only is electronic media easy to “steal” from the Internet, it is equally easy to digitally alter what one has taken. For example, a digitized image copied from a Web page can be easily imported into any number of digital photo-retouching tools, such as Adobe Photoshop, wherein the user can alter the image in an infinite number of ways. As Pamela Samuelson states:

    ...[I]t is clear that the digital medium shifts somewhat the balance of power between authors and publishers, on the one hand, and consumers of copies on the others. Consumers are no longer passive recipients of a physical text which they can only read or look at. Armed with digital tools, consumers are now users capable of taking an active role in interacting with texts to enhance the usability of them.[1]

Media on the Internet are no longer “fixed” in the sense of the immutability of printed books or the cellulose of film. The relationship between an author and a consumer is profoundly different in digital media due to a lack of physical tangibility. Information in cyberspace is removed from a physical plane and transformed into a series of ones and zeros. Thus, current issues of copyright and protection of intellectual property have sprung to the forefront of discussion as both authors and publishers of texts[2] and consumers attempt to reach a consensus as to how information can be distributed and shared in a way that provides adequate compensation for the creators of a multimedia, Web-based work.

The functioning of Internet technology itself is the reason for the uncertainty of copyright protection. The client-server architecture of the Internet requires that copies of electronic data must at least be temporarily stored in RAM in order to be displayed in a Web browser, which calls into question whether or not copying without compensation is socially desirable. A number of alarmist views have arisen in regard to the future of intellectual property and copyright protection in digital networked environments. There are those who foresee the death of copyright protection, and others who insist that current copyright law is applicable to electronic media. Because electronic publishing on the Internet is so new, it is too soon to give a definitive answer as to what the exact solution to protection of copyright should be. However, technology is developing at such a rate that ways to protect copyright will most likely spring from technological rather than legal solutions. For example, the use of encryption to limit the reproduction of electronic media may very well render the debate over the usefulness of copyright law in cyberspace obsolete.

Because it is relatively easy to learn Hypertext Markup Language (HTML) in order to create Web pages, a means to publish original work is available to a greater number of people than any other prior medium has permitted. Thus, Web developers have a duty to become acquainted with copyright and intellectual property (IP) laws in order to protect themselves from copyright infringement from consumers as well as from other Web developers in ways that do not conflict with the architecture of the World Wide Web.

The Four Types of Intellectual Property

United States federal Intellectual Property laws fall into four categories as follows:[3]

    Patent Law--Protects new, useful and “nonobvious” inventions and processes.

    Trademark Law--Protects words, names and symbols used by manufacturers and businesses to identify their goods and services.

    Trade Secret Law--protects valuable information pertaining to business that is kept secret by an owner of the information.

    Copyright Law--protects original works of authorship, which includes literary works (which covers computer programming), musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works and sound recordings.

Copyright Law

Copyright law is by far the most important of the IP laws in relation to the World Wide Web (WWW) because multimedia development combines many different types of content such as music, text, graphics, and software in one bundle, which enjoys protection under copyright law.[3] Thus, this hypertext document focuses strictly on copyright law. As Cavazos and Morin state, “all forms of expression that are fixed in a tangible medium are subject to copyright protection.”[4] Copyright law in the United States was developed for the purpose of promoting the dissemination of information to advance knowledge. Article 1, Section 8, Clause 8 of the US Constitution gives Congress the right to, “promote the Progress of Science and Useful Art, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Thus, an author has a right to remuneration if her or his work is used by anyone else in any context outside of the author’s own private use. This is not the case if a work is created by an employee as a part of one’s job. If one is an employee, the employer is considered the holder of the copyright.[3] An author’s rights last only for a limited time: a copyright lasts for fifty years beyond the death of an author if the work was created after 1977.[5]

Exclusive rights allocated to an author are as follows:

    Reproduction--the right to copy, duplicate, transcribe, or imitate the work in fixed form.

    Adaptation (the derivative works right)--the right to modify a work to create a new work.

    Public Performance--the right to recite, play, dance or perform the work in a public place or to transmit the work to the public. In the case of film or audiovisual work, showing the work is considered “performance.” Incidentally, sound recordings do not have a public performance right.

    Public Display--the right to show a copy of a work by means of some other medium such as film, TV, etc. in a public place.[3]

If any of the above rights are violated, the owner of a work has the right to take legal action against the violator. These rights extend to the international treaty staked out by the Berne Convention in 1977. Any countries that have signed this treaty have consented to provide full recognition and enforcement of the above rights to copyrighted works from other countries that have also signed the treaty.[6]

Once a work has been “fixed” in a tangible medium, it is no longer necessary by US law to attach the copyright symbol “©" to a work for the work to be considered copyrighted. However, many countries do not recognize a work as copyrighted if the copyright notice is not affixed to the work.[4] Given the international scope of the WWW, it is prudent for Web developers to include somewhere on each Web page the copyright symbol, which can be inserted using the text code "& copy ;" (but without the spaces between the characters depicted here)[7] in the HTML along with the author’s name and date that the page was created. Many Web authors also choose to display the date upon which the Web page was last updated. If a Web author does not wish for the date to be immediately apparent on a Web page, but still wishes to document the date and authorship, she or he can use comment tags in the HTML to include the date and name of the author. A sample HTML document header might look like: 

    <HTML>
<HEAD>
<TITLE>Sample Web Page</TITLE>
<!--Created by:  Leasa Carr (lcarr@gokart.com) on November 22, 1996.  
		Last updated:  December 12, 1996-->
</HEAD>

At the very least, this creates a record of when modifications to the page were made that can be viewed by looking at a Web page’s source code.

However, using HTML comment tags is really only useful in creating a record of authorship. A more dynamic way to document authorship is through the use of HTML META tags. Through the use of META tags, the author can control when a Web document should expire, what the keywords in a document are and who the author is, etc. META information must always appear in the heading of an HTML document. Within the tag itself, the terms HTTP-EQUIV or NAME must be used to give a name to the information being documented. Also within the tags, the term CONTENT must be used in conjunction with either HTTP-EQUIV or NAME to further describe the content of one’s Web page. Some but not all servers use META information to generate headers, and some browsers will also treat META data as a header. A sample use of META tags might look like this:[8] 

    <HTML>
<HEAD>
<TITLE>Sample Web Page</TITLE>
<META HTTP-EQUIV="Reply-to" CONTENT="roland@doughnut.com (Roland Doughnut)">
<META HTTP-EQUIV="Expires" CONTENT="Tue, 10 Dec 1996 11:30:00 GMT">
<META HTTP-EQUIV="Keywords" CONTENT=“copyright, web design, HTML”>
</HEAD>

The inclusion of expiration information in the META data can be useful in relaying a message to a browser that if the document is requested after this date, the browser must bypass the copy of the document that is in its cache and load a new copy from the server on which the original page is stored.[8] This gives an author control over the amount of time her or his page can be cached on someone else’s machine, thus preventing a possible loss of revenue from one’s page. The “keyword” feature is used by search engines to index the contents of a document as an author directs. If a keyword appears in the META data more than seven times, the whole tag will be ignored by the search engine. Other uses of META tags are as follows:

    <META NAME="generator" CONTENT="the title of a program">
“Generator” indicates the program used to edit or generate the HTML code. 

    <META NAME="description" CONTENT="This document contains information about...">
This allows one to write up to 1000 characters of one’s own abstract for one’s Web page. Search engines will display this text instead of pulling lines from the document when returning search results. 

    <META HTTP-EQUIV="refresh" CONTENT="n; URL=http://www.somewhere.com/">
On certain browsers, “META refresh” will cause the document to be re-loaded every n seconds, which is particularly useful if a document is updated very frequently. One should not use n = 0 seconds, however, because this will no longer allow the user to go backwards using the “Back” button. Instead, the user will , “be transferred to the specified URL, and when he presses “back” there, he will go back to the document with the refresh, which immediately redirects him to the document he tried to get away from.”

Currently, only two search engines, InfoSeek and Alta Vista, use the “keyword” and “description” META values, but surely more and more search engines will begin to follow suit as the use of META tags should speed up the cataloging process since search engines will not have to automatically generate headings and abstracts.[8] Web authors should use META data because it gives the author a greater degree of control over what is done with her or his work once it has been posted on the Web.

Despite that an author does not have to register with the government for one’s work to be considered copyrighted, a number of individual businesses have begun offering registration services in order to track down possible copyright violations on the Web. One such company is Hyperstamps,[9] which provides both free (“unserialized”) and serialized copyright images which can be placed on one’s Web page. Hyperstamps provides a variety of different unserialized copyright logos that indicate the rights that the author is granting to the user, such as:

    The Copyright Hyperstamp: Same as (C). You are asserting your copyright under international law.


    The Mention Me Hyperstamp: Copy this all you want, copy any part, but please mention my name as your source.

    The Free Use Hyperstamp: This material may be freely copied and used for any purpose whatsoever.

    The No Named Storage Hyperstamp: Please do not store this material at a named location (like your hard disk).

As these symbols are not ubiquitous, one must literally spell out the meaning of each if one uses the symbol on one’s Web page. Regardless if one uses these symbols or not, it may be a good idea to specify the rights of a user in a prominent place on one’s Web page. Of course, noting how one’s Web page is to be used, or utilizing these symbols is hardly a guarantee that someone will not freely copy from your work.

Hyperstamps also provides serialized “hyperstamps” that feature “Stamp Scoping” which registers Web pages and their entire contents, such as text, sound and images. Serialized Hyperstamps:

    ...bear a globally unique ITU/ISO serial number. If you apply a serialized Hyperstamp to a document and register the document with us, you establish a known owner (you) and a known location (the URL of the document bearing the stamp) of that unique Hyperstamp. You can then, through our CyberGumshoe Services, order an “Audit” for that document. For a nominal fee, we will track the contents of that document and let you know, in the future, if those contents are discovered anywhere else on the World Wide Web.[9]

Obviously, there are too many documents on the World Wide Web to uncover all instances of a work that has been copied without consent, but Hyperstamps provides a way that technology can be used to protect copyright on the Web. A shortcoming of this is that all CyberGumshoe can do is alert the Web developer that her or his work has been plagiarized. After that, it is up to the author to use more traditional methods to seek remuneration, such as a law suit. (Because of the international scope of the Web, seeking damages for copyright infringement might be nearly impossible given the variations in copyright law from country to country, not to mention the personal expense involved.) Perhaps an even more daunting drawback to the use of hyperstamps is that it is still impossible to verify if the person who registers with Hyperstamps was actually the original creator of the Web content. Thus, while it can’t hurt to register with Hyperstamps, the benefits are certainly limited.

In a similar vein, some netizens are proposing an establishment of a multimedia “clearinghouse” wherein one could voluntarily register one’s work on the Internet.[10] A comparable organization, the not-for-profit Copyright Clearance Center (CCC) , collectively licenses printed materials to authorize a lawful means of making photo-copies. The CCC does not handle multimedia content, but the CCC may provide a model for the registration of copyrighted multimedia work. The initial phase of the multimedia clearinghouse would be to create a database of the works registered, with possible royalty payment administration being implemented later. Licenses and royalties would be set by the owner of the registered work so that different prices could be staked out based on the scope of rights given to a user. The database created by the clearinghouse would include such information as:

  • Name of the work
  • Licensing conditions
  • Royalty fees
  • Contact information on the copyright owner or agent

The clearinghouse would be funded by nominal fees paid by both copyright owners and licensees. The clearinghouse would secure payment for work used at the outset in that licensees would pay the clearinghouse for the use of a Web work, and the clearinghouse would then reimburse the copyright holder.[10] All restrictions on the use of a work would be clearly defined upfront. Of course, the existence of such a clearinghouse is no guarantee that people will actually use it, and even if used to its full potential, the clearinghouse will not entirely prevent copyright infringement from taking place.

Fair Use

Because Web developers are also consumers of Web technology, a Web developer might want to use a portion of someone else’s work in her or his Web page. Fortunately, existing copyright law provides for three circumstances when one may freely copy from another’s work. Copying is allowable in regard to:[3]

    Public domain--These are works that are not protected by copyright, usually because the copyright has expired, the owner failed to renew her or his copyright under the Copyright act of 1909, or the owner failed to use proper copyright notice for works created before March 1, 1989. For example, the works of Shakespeare are in the public domain,

    Facts and Ideas--The copyright of a work does not extend to facts or ideas in the work because no one can claim originality or authorship for facts or ideas. The copyright covers the manner in which facts and ideas are expressed.

    Fair Use--covers situations when reproducing someone else’s work does not diminish the original author’s work in any way, and when copying a portion of someone else’s work is beneficial to public discourse.[4]

There is generally very little debate over what is in the Public Domain and what qualifies as facts and/or ideas. However, fair use is usually determined by the court system on a case-by-case basis because defining exactly what constitutes “fair use” can be a very slippery affair. Four basic concerns are considered when assessing fair use:

    Purpose and character of use--whether the use was for commercial or noncommercial purposes.[4]

    Nature of the original copyrighted work--whether or not the original work is factual or creative. Typically, courts are more likely to support fair use of factual work than fictional work.[3]

    Amount or proportion that was used--the less work copied, the better. However, there is no specific demarcation as to what constitutes a little or a lot of work copied.[11]

    Economic impact on the potential market for or value of the original copyrighted work.[4]

Cavazos and Morin note that, “A good rule of thumb is that those who use someone else’s work for commercial purposes will have a harder time establishing fair use than those who use the work for nonprofit or academic purposes.”[4] Nonprofit and academic purposes include using another’s work for comment, criticism, parody, news reporting, teaching, scholarship or research.[11] If one’s Web work falls within this range, then one will most likely be protected under the law. However, “just because the purpose of the copying falls within one of those enumerated in the statute does not automatically mean that the copying is fair use.”[12]

Copyright Myths

Anything that does not fall under fair use is infringement. One cannot claim ignorance of copyright law and fair use as a defense for copying someone else’s work. Here are a number of copyright myths that one should be aware of:

1. There is no copyright notice, so the work is not copyrighted and any portion of it can be used on a Web page.

While this was true in the past, the Berne Copyright Convention changed the rule for copyright notice by making the use of the copyright symbol optional. In the United States, everything created privately after March 1, 1989 is considered to have a copyright and is protected under copyright law regardless if a copyright notice appears on the work. One must assume that all other works are copyrighted and may not be copied unless one has the express permission from the author.[13]

Copyright applies to all forms of media, from text, to graphics, to motion pictures. For example, it is illegal to scan pictures from magazines and post them to one’s Web page, even if there is no copyright notice.[13]

The proper form for a copyright notice is: “Copyright by “[13]

2. No license is needed when only a small amount of copyrighted material is used.

De minimus copying (copying a small amount) is generally not considered copyright infringement thanks to the statute of fair use. However, this is not always the case, especially when the portion copied can be considered to be a qualitatively substantial portion of the original. For example, a prominent magazine used a 300 word excerpt from a 200,000-word autobiography by former President Gerald Ford. Despite the fact that so little of the book was copied, the passages in question were considered some of the most powerful in the book and so, the magazine was held liable for infringement. Thus, copying any amount of material carries a certain amount of risk that a Web publisher could be held liable for.[3]

3. Giving credit to authors whose works are used exempts one from needing licenses.

The only thing giving credit exempts one from is being party to plagiarism. One cannot use attribution as a defense in copyright infringement cases.[3]

4. One’s Web page would be a great place to showcase someone else’s work, and it would be free advertising for the copyright owner.

A Web designer must ask permission to use someone else’s work, which will most likely involve a license fee. It is not up to a Web author to decide whether or not her or his page would be a good place to “advertise” for someone else without the other person’s permission.[3]

5. Altering the copied work overrides the need for a license.

False. Modifying or altering copied material does not exempt one from liability. In fact, modifying a copyrighted work infringes upon both a copyright owner’s modification rights and the copying right.[3]

6. If one does not charge for the copied work, it is not a violation.

Regardless if money is involved, unlicensed copying is still a violation. The only difference is that greater damages in court can be awarded if the copyright violator charged money for the use of someone else’s copyrighted material Also, giving away someone else’s work for free can hurt the commercial value of a copyrighted property.[13]

7. Material originally posted to USENET is in the public domain, so a Web developer is free to use it.

An author of material posted to USENET must specifically state that her or his work is in the public domain for it to be so. Nothing is considered in the public domain anymore unless a person has been dead for 50 years. Seeing as the Internet is less than 50 years old, and assuming that dead people do not post to the Net, all things posted to USENET are under copyright law.[13]

8. A copy of something was E-mailed to the Web developer, so it can be posted to a Web page.

A copy is simply that--a copy, and that does not imply that one has the copyright. All E-mail written is copyrighted by the writer of the mail, but it is not secret. Thus, one can paraphrase an E-mail, or take excerpts from the E-mail without breaking the law.[13]

9. Names can be copyrighted.

Names cannot be copyrighted. Similarly, titles do not usually fall under copyright. However, company names can fall under trademark law when a particular word is used in conjunction with a product or service. For example, the fictional companies ACME Explosives and ACME Car Rentals both use the word “ACME,” but neither actually own the word, “ACME.” ACME Explosives owns the word when applied to dynamite, and ACME Car Rentals owns the word when applied to vehicle rentals. A Web developer is not permitted to use someone else’s trademark in a way that would either monetarily or otherwise infringe upon the value of the trademark. One cannot use someone else’s trademark in a way that might confuse people as to who the real owner of the trademark is, and one is not allowed to profit from the expertise associated with someone else’s trademark.[13]

10. Copyright violations are not a criminal offense.

Generally, copyright violations fall under civil law. However, in the United States, commercial copyright violation that involves more than ten copies and a value of over $2,500 is now considered a felony.[13] Be careful!

Multimedia Content: Objects on a Web Page

HTML Source Code

People learn by imitation. One learns how to write essays by reading and observing how others structure their written work. Similarly, many people use a Web browser’s View Source command to inspect other people’s HTML source code in order to facilitate the learning process of producing HTML markup. Thanks to “cut” and “paste” commands, it is easy to copy source code directly into one’s own Web document. This begs two questions: is it a copyright violation to save HTML source code to a hard drive? and is “borrowing” someone else’s source code for one’s own Web page a copyright violation? Whether or not it is a violation to save HTML, graphics, audio files, video files and links to one’s hard drive is currently an area of wide debate. The National Information Infrastructure (NII), proposed copyright legislation that is currently stalled in both the House and the Senate, holds that copying any information from the Internet into one’s RAM is a violation of copyright. The NII seeks to equate accessing a Web page with copying a Web page, which makes very little sense given the mechanics by which the Web operates (the Web browser [the client] requests a Web page from a server, which then sends the Web page and associated files back to the client where the information is stored in RAM and displayed in the browser).[14] Clearly, if the NII were to be passed, the very functioning of the Web would cease to be legal in its current form.

It seems more logical to assume that content copied into RAM is not, in fact, a copy until it has been saved onto the hard drive, which may very well be a copyright violation if it has been specifically stipulated by a Web author that a page may not be downloaded to a hard drive. Copying someone else’s source code into one’s own document and saving it to disk is a making a copy. However, one might argue that copying HTML code by itself is not a violation of copyright because it may fall under fair use or facts or ideas. HTML is a fairly limited markup language in that there are only so many design formats that one can come up with (such as the use of tables or frames). Also, every Web browser displays Web pages differently depending on the brand and version of browser, on how the browser is configured (the displaying of font type and size, for example) and what type of hardware one is using (such as the size of monitor used, and the number of lines of resolution the monitor is set to display). Thus, it may be unrealistic for a Web author to claim copyright on HTML markup when the author actually has a limited amount of control over how content is displayed. The focus of what is important, and hence, most relevant to copyright, is the actual content--the text, graphics, the elements that make up the page--more so than the HTML itself. Copying someone else’s source code is not likely to result in the loss of economic gain for the other party because it is the content of the pages, not the HTML, that generates money. One could argue that HTML code is more analogous to non-copyrightable facts or ideas, and it is the execution of those ideas (the text, color, images, etc.) that constitutes the copyrighted material. Thus, the contents of a Web page, not the HTML, are what should be protected under copyright law. Again, this issue has not been resolved, and only time will reveal what laws will be passed.

Links

Links are URLs, much like a street address, and so do not fall under copyright protection. In regard to linking one’s hypertext document to another person’s Web page, “...there appears to be a doctrine of implied public access on the Web.”[14] Part of what makes the Web so unique is the ability to link between documents on any server around the globe. Posting Web pages on a server implies that a Web developer is allowed to link to any pages she or he chooses, and that any other Web developer may reciprocally link to her or his pages. A link is not a derivative work of a referred page as it does not copy any content from a Web page; thus, there is no legal recourse to prevent others from linking to one’s Web page.[12] It is quite possible that one might find one’s pages linked to something one wouldn’t want to be associated with. The only thing a Web developer can do is monitor the Web for inappropriate uses by using search engines to find references to one’s own site, observe where hits to one’s page are coming from, and request that other sites ask for permission before linking to one’s pages. The only defense one really has is the use of netiquette, which suggests that other sites should be told before one links to them, and that one should remove any links to which a “linkee” objects.[14]

Another linking issue is whether or not it is permissible to use an inline image of a URL from another host. A Web developer cannot do this without the express permission from the owner of the originating page. Matt Rosenberg states:

    It is true that the copyrighted image is not copied by the referring Web author. For that matter, when a client accesses the page in question, the image never even touches the referring server. The server sends the page to the client and embedded in the HTML source are instructions for the client to grab the image from the second server and place it in the proper place on the page. It is not contributory infringement, because the client user could legally access the image itself if he or she wanted without instructions from the referring web page. Nonetheless, this practice creates what is known as a derivative work.[12]

Copyright owners have the right to restrict derivative works, and so it is not legal to use referring URLs for inline images.

As stated earlier, links in an of themselves are not copyrightable. However, many Web pages include extensive lists of links relating to a particular topic, which shows originality of thought in generating the link list. If original thought was put into creating a link list, the links may be copyrightable under a compilation copyright. Alphabetized lists, such as that found in telephone books, are not considered “original” enough to be covered under a compilation copyright. Thus, it is probably not legal for one to copy an entire link list from someone else’s Web page for use in one’s own. However, cutting and pasting several of the links from a list, or rearranging the list most likely falls within the bounds of the law.[14]

Text

In order to use material such as magazine articles, textual content of other Web pages, excerpts from books, newspaper articles, computer software, etc., a Web developer must contact the owners or licensees of the copyrights to obtain the required rights to use such materials. This most likely will include a licensing fee.[3]

Photographs

The photographer initially owns the copyrights to any photographs taken, although the copyrights, “...may be assigned to another party or transferred to the photographer’s employer under the work-for-hire doctrine.”[3] Determining who owns the rights to a photo can be a daunting task because of the sheer numbers of photographers in the industry. Also, just because an image appears in a magazine or some such work does not mean that the magazine owns the copyright. It may be that the magazine only has a license to use the photo one time. Limitations often apply to getting a license for a photograph depending on how the image is going to be used--if it will be in color or black and white, how the photo will be attributed, the number of copies made, and in the case of multimedia works, when, where and how the consumer might be able to call up a photo multiple times and in what manner.[3] Thus, scanning in an image and posting it to one’s Web page as a .gif or .jpeg image without the express permission of the copyright holder is a violation of copyright law.

Music

Many Web and multimedia developers find the complexity of obtaining music licenses more troublesome than worthwhile. The first individuals one must contact are the composer and lyricist of the music in question. Because using music in a multimedia work is not considered a standard performance use, a non-standard license is needed. One must then secure a Public Performance License from either American Society of Composers, Authors, Publishers (ASCAP) or Broadcast Music, Inc. (BMI) because the multimedia work is open to the public and is not just for private consumption. Then, one must secure one or more of the following Reproduction Licenses:
    Synchronization license: allows for mechanical reproductions of a musical composition that are accompanied by a motion picture or other audiovisual work used in connection with a motion picture, theatrical performance or television broadcast.

    Mechanical license: this is compulsory under US copyright law. This is a license to make mechanical reproductions of music not accompanied by an audiovisual work, and which is intended only for distribution to the public for private use.

    Videogram license: A license to make mechanical reproductions of music accompanied by audiovisual work which is distributed in a tangible form such as a CD-ROM, videotape, laserdisk, etc. for the home market.

    New Media license: This is a new license that is still evolving and is not always available. This allows for the reproduction of a musical work in connection with the distribution of computer software, karaoke, and other new media devices. This license has been created to minimize confusion as to which other mechanical licenses may be needed.[15]

One would only need a Print License if one wanted to publish the sheet music or lyrics. Also, according to ruling for Grand Upright Music v. Warner Bros., the court held that it was a copyright infringement to use three words and accompanying music from a particular song.[15] Thus, digital sampling is illegal.

Film and Video Clips

The copyright holders of video or film may include the actors, directors, screenwriters, music composers and cameramen. Thus, the use of film or video may entail obtaining multiple clearances for any music used in the clip, a license from the copyright owner, reuse fees to the Screen Actors Guild (SAG), the Director’s Guild and possibly the Writer’s Guild, and clearing the rights of the publicity releases for the actors involved. If the film clip used was based on a novel, or if the film uses music created by a third party not affiliated with the creation of the film, the multimedia developer is responsible for acquiring the proper licenses from all parties involved.[3]

Digital Solutions to Copyright Infringement

Currently, electronic identification is not generally affixed to media posted on the Web, which means that one cannot be certain of who authored the content, and if the content contains valid information. Text-based warnings are the only defense against copyright infringement, which is to say that there is virtually no immediate protection at all. The advantage to this, though, is the easy transference of information and materials among Web developers all over the globe. This method obviously favors the consumer/developer who wishes to freely borrow from someone else’s work, but provides little protection once a Web page has been created. A proposed solution to the free-flowing of information on the Net is the use of encryption with digital work.[16] However, Otis Port of Businessweek counters:

    But using encryption to protect electronic data is like securing the barn with a high-tech combination lock. The lock is all but impossible to open without knowing the combination, but once the barn door swings wide, the animals are loose and forever beyond control. With a few keystrokes, a decrypted document can be dispatched via the Internet to thousands of recipients, each of whom can relay more copies to more people. For copyright owners, it’s the ultimate nightmare.[17]

Thus, technology may give us a number of solutions, but the possibility of creating unlicensed copies will most likely always exist. This same is true in regard to other inventions that can be illegally used for copyright infringement, such as photocopy machines and VCRs when used for dubbing copyrighted videos.

The difference between copying something on a photocopy machine and copying a .gif or a .jpeg, for example, is that encryption can trace illegally made copies back to the source of infringement. Digital signatures are holographic data that can be embedded into any type of graphic, sound file and/or video clip. The holographic data is composed of individual bits that cannot be removed, even after many digital-analog conversions, which means that an author can irrevocably place her or his stamp on original work. However, holograms will not work with text-based media such as computer programs or plain text.[17] Instead, if a user wishes to download software or copy text, one could request a “header contract” (also known as a “container”), which contains information about the data and how the data is to be used. If the user agrees to accept the contract, the document is then available to the user. Header contracts are still in the development stage, but are very likely to become a part of Net life.[1]

Built into the digital encryption is a method of ensuring automatic payment to an author or publisher for use of a program or specific data. Some brand names emerging for such technology are Release Software Corporation’s AutoPay, Electronic Publishing Resources DigiBox, and IBM’s Cryptolopes. Through such header contracts, the consumer is offered a variety of options that might include purchasing an entire program or file for unlimited use, or for portions of a program or file for a specified amount of time. An advantage to header contracts is that digital media can be purchased according to one’s needs.[17] No longer would someone have to buy an entire bunch if all one wants is a banana, so to speak. Thus, the Web may largely become a network based upon pay-per-use transactions, perhaps signaling the end of fair use and copyright law.

International Decisions

Until a global consensus on copyright protection is reached, a Web developer must become familiar with current copyright laws, customs and practices in order to create Web sites that do not infringe upon existing laws. However, one of the major problems with documentation already available on the Web is that much of the copyright information pertains strictly to the United States and fails to address the global implications of the ease of perfect replication in the digital age. However, there are global organizations working to define the parameters of copyright law. The World Intellectual Property Organization (WIPO) is an arm of the United Nations that promotes protection of intellectual property. WIPO is sponsoring a diplomatic conference being held from December 2 through the 20th, 1996 in Geneva to amend the Berne Convention to extend copyright guidelines to the Internet. At this time, both the European community and the United States are suggesting that some of the following amendments should be made to the Berne treaty:

  • The treaty should be expanded to cover wired communications (previously only “wireless” was covered).
  • Using the Internet is communicating with the public (it is not a private act)
  • Storing data in RAM would be an act of reproduction
  • Fax transmissions of copyrighted material should be made illegal
Some issues raised by the conference are whether or not the display of Web pages are covered under copyright law, the extent to which on-line service providers are responsible for content on their databases, and the various technological protection devices that can be used to counter copyright infringement.[18] These are by no means the only issues covered. One can only wait and see if the treaty is approved by the conference in 1997. Until then, intellectual property issues in the global environment are still very much undefined.

The Future of Copyright and Fair Use in the Digital Age

Rather than relying upon the law, the future of copyright protection seems to be moving towards a method of encryption that would allow for the author of a work to limit or prohibit the copying of her or his work, which very well may result in the death of fair use on the Internet. It is important that Web content developers receive compensation for work produced, but not to the extent that links become metaphorically broken for those who do not have enough money to surf the Web. Such an encryption system may perhaps overly favor the creator of a work by increasing protection from copyright infringement by a consumer, which may have the net effect of limiting the circulation of ideas. The circulation of ideas is crucial to the development of new ideas and concepts, and a strictly pay-as-you-go system could result in a divide between information have- and have-nots. If a stratification between information holders and have-nots is fostered, the original use of the Internet as a forum for learning and information-swapping as staked out by academia in the early days of the ARPANET will remain a thing of the past, which would be a most unfortunate maturation point for a medium with so much promise.

Copyright December 9, 1996 by Karen L. Kranack. All Rights Reserved.

Endnotes

[1] Samuelson, Pamela. "Copyright, Digital Data and Fair Use in Digital Networked Environments." (http://www.droit.umontreal.ca/CRDP/Conferences/AE/Samuelson.html)

[2] My use of the words "text" or "texts" is an umbrella term to cover all types of media, from printed text to mulitmedia applications and computer programs.

[3] Brinson, Dianne and Radcliffe, Mark. "Intellectual Property Law for Mulitmedia Developers." (http://www.dorsal.org/p-law/wong_dir/docs/wongpap1.html), 1994.

[4] Cavazos, Edward and Morin, Gavino. Cyberspace and the Law: Your Rights and Duties inthe On-Line World, the MIT Press, Cambridge, Massachusettes, 1996, pp. 51-55.

[5] U.S. Constitution, Article 302(a).

[6] D'Orso, Maureen. "Challenges to Intellectual Property in the Age of the Internet," Unpublished paper for Dr. Dorothy Denning's class, "Networks and Society," Georgetown University, Nov. 18, 1996.

[7] HotDog Pro v. 2.097 HTML Editor. (http://www.sausage.com)

[8] Engelfriet, Arnoud. "META--Meta Information." (http://www.htmlhelp.com/reference/wilbur/head/meta.html), 1996.

[9] Hyperstamps. (http://www.hyperstamps.com)

[10] Egger, Michael, Fregueras, Fred, and Wong, Sandy. "Multimedia Content and the Super Highway: Rapid Acceleration or Foot on the Brake?" (http://www.eff.org/pub/CAF/law/multimedia-copyright)

[11] Cyberspace Law for Non-Lawyers, "Copyright Law in Cyberspace." (http://www.counsel.com/cyberspace/copyright.html)

[12] Rosenberg, Matt. "Copyright Law Meets the World Wide Web," Crossroads, November 1995. (http://www.acm.org/crossroads/xrds2-2/weblaw.html)

[13] Templeton, Brad. "10 Big Myths About Copyright Explained." (http://www.eff.org/pub/intellectual_property/cpyrt_myths.faq)

[14] O'Mahoney, P.J. Benedict. "Web Issues." March 10, 1996. (http://www.benedict.com/webiss.htm#webiss)

[15] Greguras, Fred and Hachenburg, Erick. "Current Multimedia Content Rights: Legal Issues--A Top Ten List" (http://www.batnet.com/oikoumene/mmediatop10.html#Part1)

[16] Ericson, John S. "Can Fair Use Survive our Information-based Future? (http://picard.dartmouth.edu/FairUseInfoFuture.html)

[17] Port, Otis, "Copyright's New Digital Guardians," Businessweek, Sept. 19, 1996. (http://www.businessweek.com/1996/19/b347474.htm)

[18] Jackson, Mary E. "Intellectual Property: An Assessment of International Implications." (http://arl.cni.org/info/frn/copy/wipo.html)