Is there such a thing as digital copyright? There certainly isn’t some sort of ‘Electronic Copyright Act’ in the UK and, while there is a set of Copyright and Rights in Databases Regulations 1997, it contains a definition of ‘database’ which covers both hard copy and electronic information. So, the question arises as to whether or not digital content is treated any differently to hard copy content in the UK’s copyright legislation and, if so, how.
The legislation is beginning to treat digital content differently. The Copyright and Related Rights Regulations 2003 implemented directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. The regulations introduced a number of additional forms of legal protection which relate only to electronic information. For example:
- The right of communication to the public, which specifically relates to communication to the public by electronic transmission (Copyright, Designs & Patents Act 1988, s20)
- Technological measures cannot be circumvented
- Protection for electronic rights management information.
Electronic information is often subject to a set of terms and conditions in the form of a contract or licence agreement and, as such, the relevant area of law is the law of contract, rather than copyright law. With very few exceptions, contracts can override copyright law; and in the English legal system the basic principle is that a contract freely entered into by an adult is legally binding.
Licences and contracts
The digitisation of content has altered the way in which rightsholders protect their intellectual property rights. Instead of relying primarily on copyright law, rightsholders now use licences and contracts. With this change also comes a shift from ‘ownership’ to ‘leasing’. A licence does not confer ownership rights. It merely specifies the conditions under which databases and other copyright works can be used and exploited, and by whom.
Typically, the licences that information professionals negotiate are non-exclusive, granting the same rights to many different users. The customer or licensee is merely paying for the privilege of being able to use the information product or service for a limited period of time. With electronic journals, for example, once the licence comes to an end the customer ceases to have access to not only the current issues of the e-journal(s), but also the back issues, unless there is a clause in the agreement covering perpetual access. Indeed, many licence agreements will also require the licensee on termination of the contract to agree to delete any materials that have been downloaded from the product.
Inter-library loans have long been an accepted activity in the print world, but what do terms such as ‘lending’ or ‘inter-library loan’ mean in the context of electronic content? The term ‘loan’ suggests that the material is returned at some point in time, but this applies only to books in the print environment, and not to material in the electronic environment where a copy of the file is made. Nevertheless, a number of licences for electronic products do contain clauses covering inter-library loans, although these would usually be restricted to academic and not-for-profit organisations.
Digital copyright featured in this year’s general election. The Labour Party manifesto stated: ‘We will modernise copyright and other forms of protection of intellectual property rights so that they are appropriate for the digital age. We will use our presidency of the EU to look at how to ensure content creators can protect their innovations in a digital age. Piracy is a growing threat and we will work with industry to protect against it’.1
Rightsowners may well be nervous about their content being available electronically, because of the potential for copyright infringement. But are these concerns overstated? The following are just a few illustrations of copyright infringement involving the use of digital information.
- Easyinternetcafe was found guilty of copyright infringement for allowing customers to download music from the internet on to CDs – see Sony Music Entertainment (UK) Ltd and others v Easyinternetcafe Ltd (High Court, 28 January 2003) [2003] EWHC 62 (Ch).
- People have been selling illegal copies of digital content on the internet through auction websites. For example, the publisher John Wiley & Sons filed lawsuits against a number of individuals who used eBay.2 By the time Wiley announced its legal action in March 2005, two of the cases had already resulted in default judgements in favour of Wiley to the tune of $18,417 and $24,398.50 respectively.
- Legg Mason shared one paid subscription to Lowry’s Market Trend Analysis with more than 1,300 employees over the company’s intranet. In mid-2003 the federal district court in Maryland found Legg Mason liable to Lowry’s for breach of contract and wilful copyright infringement. Legg Mason had to pay $19,725,270 in damages and lost subscription fees. Legg Mason went back to court in February 2004 seeking a reduction in the award for damages but the figure was upheld.
- There are many examples of entire websites being copied without permission.3
- In the first half of 2005, Agence France-Presse filed a lawsuit against Google alleging that ‘Google News’ redistributed its story excerpts and photographs without permission and that it therefore infringed AFP’s copyright. In the US, there has been a dispute between the University of California San Diego’s library and the American Association of Publishers about electronic reserves. The AAP is concerned that e-reserves can infringe its copyright and have an adverse effect on sales. If a compromise solution cannot be found, this could lead to legal action.4
Copyright is meant to balance the competing interests of key stakeholders such as publishers, authors and information users. It is a delicate balance which has been carefully crafted over many years, but the digital world has created new imbalances. The technology makes it possible for a work in digital form to be copied cheaply and quickly, and for the copy to be just as good as the original. Without controls in place to ensure that any copies made are paid for, this threatens the interests of rightsholders.
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Relevant legislation/regulations
- Copyright, Designs & Patents Act 1988
- Library Regulations (SI 1989/1212)
- Copyright and Rights in Databases Regulations 1997
- Electronic Communications Act 2000
- Copyright and Related Rights Regulations 2003 (SI 2003/2498, implementing EC directive 2001/29/EC)
- Legal Deposit Libraries Act 2003
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Monitoring use
In the electronic world it is possible to monitor the usage of content in a way that is not possible for hard-copy items. For example, digital rights management (DRM) technology can monitor each time an item is accessed. This hands rightsholders the potential to charge for each of those accesses.
Copyright owners have turned to technology in order to find solutions. DRM systems – which are now protected by legislation – have the ability to ‘lock digital doors’. The problem is that by criminalising the breaking through of a technological protection measure (TPM) they also lock the doors against exceptions that users may be entitled to such as ‘fair dealing’. This ‘digital lock-up’ treats everyone as though they are potential criminals. There are those who argue that it would be better to build in a set number of times that the work can be copied, so that fair dealing is taken into account. Indeed, this suggestion would seem to have the support of a number of rightsholders.
Last year the Libraries and Archives Copyright Alliance (Laca) invited people to let it know what changes they would like to be made to the Copyright, Designs & Patents Act 1988.5
One topic which kept cropping up was the desire to be able to use digital signatures on copyright declaration forms. Electronic signatures are already legally admissible within the UK, following the enactment of the Electronic Communications Act 2000. The Library Regulations (SI 1989/1212) accommodate electronic signatures, because the signature of the person must be in writing, and this is defined in s178 of the CDPA 1988 as including any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded.
Unfortunately, that isn’t the whole story. The Library Regulations also require that the signature is personal. It would need to clearly identify the individual, and mustn’t easily be used by others. Meeting the requirements of the Electronic Communications Act 2000 is likely to be expensive, and it is for that reason that Laca is exploring whether a voluntary agreement can be reached with the publishing industry. The Patent Office takes the view that deciding what form of e-signature would fulfil the criteria is a matter for experts in this area.
The Copyright and Related Rights Regulations 2003 (SI 2003/2498) make it an offence to tamper with or remove ‘electronic rights management information’, and this refers to any information provided by the copyright owner which identifies the work, the author or any other rightsholder, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information. This measure has the effect of strengthening the author’s moral right of paternity, because it would, for example, be an offence to remove a copyright statement such as ‘© Joe Bloggs, 2005’ appearing on each page of the electronic document.
Simply by virtue of the way in which the internet works, anyone searching the web is making multiple copies of the pages they view – there is a copy displayed on screen and also a copy saved to the computer’s cache, even before taking into account any printout or download of the web page. Article 5 of the copyright directive (2001/29/EC) deals with exceptions and limitations, and there is one compulsory exception which all member states were required to implement. This dealt with the subject of temporary copies. The exception has been implemented in the UK by the insertion of section 28A in the CDPA 1988. Temporary copies are legitimised by section 28A, so long as they are transient or incidental and they are an integral and essential part of a technological process the sole purpose of which is transmission in a network between third parties or a lawful use of the work and there is no independent economic significance.
Downloading of music
One aspect of digital copyright which has a very high profile, and which is also very controversial, is the downloading of music off the internet without the permission of the rightsholder. This is quite simply against the law. Rightsholder bodies such as the International Federation of the Phonographic Industry (IFPI) and the British Phonographic Industry (BPI) have been campaigning prominently in the UK to stamp out the file sharing of unlawfully copied music. Indeed, they have taken court action to force internet service providers to disclose the details of people alleged to have used peer-to-peer file-sharing services to copy or to share unlawfully copied files.
One user of a peer-to-peer file-sharing service recently asked me about music downloading, and whether her use of a particular service was legal. She mentioned that users could make a voluntary payment – she thought paying would make the download legal. However, simply because a service collects money from its users doesn’t automatically mean that some or all of this money is being forwarded to the rightsholder. And if the payment is made on a voluntary basis, how can rightsholders be guaranteed a payment for each use that is made of their work?
Even where songs have been purchased from a legitimate download service, they don’t necessarily run on all hardware. This raises the question of interoperability – should governments force digital music companies to use a single, unified DRM system, in order to allow songs purchased from any download service to run on any hardware?
The House of Congress Judiciary Committee’s Subcommittee on Courts, the Internet and Intellectual Property recently looked at this issue. Four industry representatives were asked to testify on the issue of proprietary DRM schemes, which can prevent a track downloaded from a competing music store from being played on a player such as an iPod, unless the song is downloaded in an unregulated MP3 format. Each of the four speakers advocated a market-driven response, instead of government intervention; and several speakers specifically cited the landmark fight between VHS and Betamax videocassette standards, which was ultimately decided by the marketplace, and not regulators or the courts.
Website protection
Websites are not protected as a separate species within copyright law, unlike broadcasts; and the only websites that would fall within the definition of a broadcast are simulcasts (see CDPA 1988 section 6(1A)). However, websites are protected in a number of ways:
- The individual components of a web page or a website are protected. If, for example, a web page consists of a string of text which is wrapped around a chart, and a short piece of music plays when the web page loads, then the string of text would be protected as a literary work, the chart would be protected as an artistic work, and the piece of music would be protected as a musical work
- Websites are also protected by the right of communication to the public.
The Legal Deposit Libraries Act 2003 anticipates that in future both electronic and hard-copy content will be preserved by the legal deposit libraries and there are provisions in the Act which specifically relate to websites.
However, it may be some time before we get enabling legislation to bring the legislation into force covering the whole range of electronic information products.
Collecting societies are only able to act where they have been given a mandate and, so far, rightsholders have been reluctant to let the collecting societies administer their rights in born-digital content. The rightsholders don’t want anything to compete directly with their primary sales of digital publications.
The Newspaper Licensing Agency has been developing a central digital database of newspaper articles, which is due for release this summer. The database takes newspaper content directly from production systems; and images are processed and indexed using XML technology on a central host system in order to allow for rapid retrieval. Initially the database will provide national newspaper content, but coverage of regional newspapers is planned for later in the year.6
In recent years we have witnessed a number of new business models for the publishing of digital content. There is ‘open access’, which is an alternative to the traditional method of publishing scholarly papers. In the open access system, electronic versions of scholarly materials are made available free of charge for anyone who wishes to read them. There are two ways in which open access is achieved – either the articles are published in open access journals which don’t levy a subscription charge to the user, or the articles are deposited in an institution’s electronic repository which is accessible from remote locations without any access restrictions.
Another model is ‘Creative Commons’.7 Creative Commons licences help content producers retain copyright while at the same time encouraging certain uses of their work. This can best be summed up in the phrase ‘some rights reserved’. In the same vein as Creative Commons, there is also the Creative Archive Licence which has been launched by the BBC, Channel 4, the British Film Institute and the Open University, paving the way for a new scheme which will allow people to legally download, manipulate and share film, TV and radio archives.
An author’s moral rights are a particular concern in the digital environment, owing to the ease with which users can manipulate images or text. The Copyright Licensing Agency, for example, says that this is outside its remit. So, when an artist asks ‘But wouldn’t the end-user crop or stretch my image?’ or an author asks, ‘Couldn’t my text be tampered with?’, the answer is: ‘No. Not under a CLA licence.’
As information professionals, we have a responsibility to ensure that our activities are copyright-compliant. This is both a legal and an ethical issue. In addition to the need to stay on the right side of the law, we also have obligations under CILIP’s Ethical Principles and Code of Professional Practice for Information Professionals.8
This makes it clear, for example, that the conduct of members should be characterised by ‘respect for, and understanding of, the integrity of information items and for the intellectual effort of those who created them’ and it also says that members should ‘defend the legitimate needs and interests of information users, while upholding the moral and legal rights of the creators and distributors of intellectual property’.
In order to ensure copyright compliance, it is worth undertaking an audit of your current practices and procedures. For example, you might want to consider the following questions:
- If you have a number of books which are accompanied by a CD-Rom, have you made a complete copy of the CD in case the original is lost?
- Have you copied back issues of e-journals on to a shared drive on the computer network?
- Have any works been posted on to your intranet in which you do not own the copyright?
- Do your users share their passwords to online services with friends and colleagues?
References
1 www.labour.org.uk/fileadmin/manifesto_13042005_a3/
pdf/manifesto.pdf – see chapter 8.
2 ‘Wiley sues 10 illegal online resellers’ (http://eu.wiley.com/WileyCDA/Section/
id-101310,newsId-2204.html).
3 www.pirated-sites.com
4 Marty Graham. ‘Sides clash over online library.’ The National Law Journal, 29 April 2005 (http://www.law.com/jsp/article.jsp?id=1114679112558). 5 www.cilip.org.uk/aboutcilip/newsandpressreleases/
archive2004/news120804.htm 6 6 For more details on the project see www.ecomallbiz.com/easy23/introduction/
7 http://creativecommons.org
8 www.cilip.org.uk/professionalguidance/ethics
Paul Pedley is Head Researcher, Economist Intelligence Unit (p.d.p@lineone.net). He is also the editor of Managing Digital Rights: a practitioner’s guide (ISBN 1 85604 544 7) and an e-book on Digital Copyright, both published by Facet Publishing.
Digital Copyright is the first in a new series of e-books from Facet. They will be continually updated so that at any time the most current information is provided.
Single use (1 85604 573 0; £34.95 + VAT) or multi-user licence for a single location (1 85604 559 5; £175 + VAT).
For more information visit www.facetpublishing.co.uk