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| DownUnder | April 2002 |
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Copyright on the Web - the debate heats up Many people feel that free speech, and the rights of consumers, are being harmed by the online tactics of the major copyright holders, such as the music and movie industries. Of particular interest to free speech advocates are the adoption of a number of digital encryption schemes, designed to reduce the risk of piracy. These schemes, unfortunately, disable the purchaser's ability to copy the data for other uses. Most of us have become used to copying music to tapes and CDs to use in our cars, on our Walkman's or simply on a cassette tape player in the garage. Well, that's all over. These encryption techniques virtually eliminate our ability to copy music and films at all. Both the music and motion picture industries are fully committed to encryption and there seems little we can do about it. Both industries blame falling conventional sales, and the Web, for their encryption initiatives. I think there is no doubt that Napster, Hotline, Gnutella and a host of "peer to peer" networks have been responsible for distributing an unprecedented amount of songs and movies that infringe the copyright holder's legal rights. But were the falling sales due entirely to piracy, or were there other circumstances, such as September 11, which seriously affected their performance for the year? And how much of this illegal distribution could have been converted into "new business" if the content companies had offered low payment distribution options instead of litigation? Even "fan sites" have become the target of the content companies, with some movie companies taking exception to the "lifting" of their images, graphics and cinematography from video, DVD or print. "Cease and desist" letters are being sent to Web publishers with ever-increasing frequency, as the copyright holders seek to control the use of their creations online. Understanding copyright I'm no lawyer, but copyright should be a fairly simple matter. If you draw, write, take photographs, make films, compose music, create sculpture, write poetry, make Web sites or code HTML -- and you are self-employed -- you are a copyright holder. If you perform your creative duties for an employer, in general they are the copyright holder, not you. Copyright is similar, in concept, to owning property. You can license (rent) a copyright protected creation to another person or company to use for a particular usage. Or you may assign (sell outright) the copyright to another person or company to use as they see fit. You may also grant permission to another person or company to use your creations free of charge. In the US and Australia there is no formal requirement for copyright registration, and your creations are protected automatically when they are created. It is a good idea, however, to use a copyright notice, such as © 2002 Ian McPherson. This should be placed on or near the item, and in the case of a Web site, somewhere on the site. Many people use a small copyright statement or link at the base of their pages. There is little industry discussion on who holds copyright on a Web site, as the issue can be quite complicated. It is more than possible that one entity could own the copyright on the database system, while another could own copyright on the graphics, and another could own the copyright on the coding. If you do it all yourself, it's a different matter. But if you don't, keep this fact in mind. Avoiding copyright infringement The primary means of avoiding copyright infringement, including cease and desist letters, is to obtain permission to use items protected by copyright from the copyright holders. To my way of thinking, it is far better to close the barn door before the horse has bolted :) So, before you post that image of Dr. Spock, consider obtaining permission from the movie company. It may save you a substantial amount of money. These companies spend millions of dollars creating and promoting these creations. Don't assume you can just borrow their property and use it. They may choose to sue you. Ask Napster. The content from some copyright creations may be used for study, research and academic purposes. These rights vary depending upon the type of creation, the copyright laws in the country you reside in, and the specific type of purpose. Even if you believe that your purpose is legitimate, and supported by the law, it is wise to obtain legal advice. Princeton University Professor Edward Felton was threatened by the Secure Digital Music Initiative (SDMI) with litigation, because he wanted to publish his findings on their encryption methods, which he and students managed to "crack" in a Web challenge. I would have thought that the money would have been better spent improving the encryption rather than suing the Professor, but the copyright holders disagreed. Even movie trailers and advertising is not exempt from copyright. Although the movie companies and the advertisers obviously benefit from the wide dispersal of these clips, it is still their choice whether or not they grant you permission. Last year, Apple Computer requested that AdCritic (which has now closed) remove all Apple advertising clips form the AdCritic site. Although it is unlikely that Apple would initiate copyright litigation to stop a Web site posting its advertising, they are within their rights to request that it is removed. Save money, Avoid lawyers If you are a copyright holder, even a small one, it a good idea to learn about your legal rights. The best "information" Web site I have found is an Australian site - the Australian Copyright Council. The laws in Australia and the US are very similar, so this site should be of interest to US visitors too. Visit the site's Information Sheets page, where there is a list of downloadable PDFs regarding most copyright topics. Remember that copyright litigation is very expensive. In Australia, for instance, copyright infringement cases need to be heard in the High Court in Canberra, and costs can easily amount to $AUD50,000, not counting your own time and preparation costs. If you sue someone, or someone sues you, it could easily put you out of business. Try to avoid these costs entirely. Produce all you own work, or pay for it to be done. Big Brother? Rampant software, music and movie piracy has come at a cost to the consumer. The response of the software, music and movie industries has been to implement more onerous copy protection, and to form organizations that police and litigate offenders. Microsoft has introduced OS-level copy protection in Windows XP, and it seems that an increasing number of software packages report back to their corporate Web sites. Being a copyright holder myself, I do not agree with all the arguments put forward by the more radical Free Speech advocates, and I certainly do not agree with some of the intimidation tactics used by some of the music, movie and software companies. Hopefully, there will be some practical, cost-effective initiatives from the content companies, who only have themselves to blame for not offering cost-effective online services quickly. It is a disservice to their shareholders to force so much litigation on people who usually have little chance of paying the court-imposed legal penalties. More reading
Ian McPherson |
