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Digital Technology Law Journal |
John Lambrick
Manager, Legal Services
RMIT University
Melbourne
john.lambrick@rmit.edu.au
The rapid growth of Internet commerce has seen an increase in Web-based content delivery. The myth that the Internet is a 'copyright free zone' is slowly being dispelled, and on-line vendors must pay particular attention to content management not just in terms of any digital product provided to an end-user, but also in terms of the vendor's Web site transaction platform.
1 Introduction
[1] The transmission of information in open networks creates new and exciting challenges for copyright owners and their lawyers. A particular focus has been placed upon the protection of content transmitted over the Internet, and concern has been expressed that traditional means of protection may not be adequate. Reasons for such concern include:
[2] As businesses gravitate towards electronic commerce, there will be an inevitable increase in Internet (and predominantly Web-based) content delivery. Typically, content may be delivered:
[3] In utilising a medium such as the Internet on-line vendors must pay particular attention to content management, not just in terms of the digital product provided to end-users, but also in terms of the vendor's Web site which will usually be the transaction platform in business / consumer Internet transactions.
[4] Copyright issues are, of course, at the very heart of any content management strategy, although copyright should not be the sole focus. In any content management exercise there are two questions which must be addressed by an on-line vendor:
[5] This paper attempts to provide practical responses to those questions in the context of both Australian and United States copyright law. But first it is helpful to look at recent Internet-related copyright law developments.
2 Copyright and the Internet
[6] Because the Internet transcends national boundaries, it is indeed fortunate that there are many common threads which run through international copyright law. In no small measure this is due to the establishment of international treaties such as the Berne Convention for the Protection of Literary and Artistic Works (established in 1886 in Berne, Switzerland) which is administered by the World Intellectual Property Organisation (WIPO), and to a lesser extent the Universal Copyright Convention (UCC) which became effective in 1955. The UCC has declined in influence since the United States joined the Berne Convention. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) concluded in 1994 has also been significant in achieving consistency in the international application of copyright laws.
[7] Whilst differences certainly exist between copyright law as it applies in the United States and in Australia [1] , those differences are essentially at the margin. The substance of copyright law as it operates in the United States and in Australia is the same: copyright law in both countries gives protection to original expression of ideas by granting certain exclusive rights for a limited time. In the United States copyright is governed by Title 17 of the United States Code and in Australia by the Copyright Act 1968. Both copyright Acts are federal legislation.
[8] In Australia there has been some doubt as to whether copyright rights extend to uploading a work to the Internet for the purpose of allowing it to be viewed or 'browsed'. The question is whether screen displays are covered by the right of reproduction under the Australian Copyright Act, which is a right to reproduce 'in material form'. Whilst it seems to be reasonably clear that a screen display amounts to a reproduction [2] , an issue is whether it is a reproduction in material form. That issue is expected to be resolved shortly in Australia in the context of legislation which the Federal government has indicated it will enact to adopt the two new WIPO treaties (the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty). In response to a discussion paper entitled 'Copyright Reform and the Digital Agenda'[3] the Australian Federal Government has introduced the Copyright Amendment (Digital Agenda) Bill 1999. The Bill provides for a new right of 'communication to the public', which will cover communication to the public in the traditional non-interactive sense of 'broadcasting', as well as interactive, on-demand services. The new right of 'communication to the public' will therefore remove any doubt that ownership of copyright includes the right to place an original work on and transmit that work over the Internet.
[9] Coupled with the new right is a very important exemption which would provide that an incidental copy created in the course of browsing would not infringe the reproduction rights under the Australian Copyright Act 1968.[4]
[10] Clauses 33 and 83 of the proposed Copyright Amendment (Digital Agenda) Bill 1999 also make it clear that carriers and Internet Service Providers (ISPs) will not be liable for copyright infringements on their customers' Web sites simply because the infringement occurs on the facilities of the carrier or ISP.
[11] In the United States, the Digital Millennium Copyright Act HR 2281 was enacted in October 1998. The Act adopts the two new WIPO treaties.
[12] With countries such as the United States and Australia adopting the two new WIPO treaties and a move towards harmonisation of copyright rights within the European Union[5] , international copyright protection for on-line content will, at least as a matter of law, have moved a step closer and this should be of comfort to copyright owners. Despite this development, copyright owners should not expect that uniform legislation alone will protect their content. Truly effective content protection is dependent upon the end-user respecting the owner's copyright in the content. Copyright owners will need to appreciate that in transmitting content over the Internet they are transmitting into countries of great cultural diversity, many of which may not respect a heavy-handed, sanction-driven approach to compliance.
[13] A content management strategy must be built on a platform of understanding and respect for authors, end-users and other copyright owners. It also requires owners to ask themselves just how much of their content do they really need to protect.
3 Management of Inputs
[14] When the issue of management of on-line content is raised, the immediate focus perhaps understandably tends to be upon protection of content from the point of transmission to an end-user. No doubt this is because digital content can be copied cheaply and distributed over a wide area in comparison with other forms of copyright material, and in this regard the Internet has become an alarmingly effective means of distributing pirated software. But it is in the area of management of inputs that persons transmitting content on-line can and, indeed, must do a great deal to ensure that they can use their material in the way that they want to use it.
3.1 The Problem with Multimedia
[15] Transmissions of copyright material over the Internet from business to consumer tend to be predominantly Web-based. In any Web-based transaction it is necessary to consider copyright law in so far as it relates to multimedia. Even if the 'product' which is the subject of the transaction is not a multimedia product, multimedia copyright issues arise in respect of the Web site platform from which the 'product' is sold.
[16] A multimedia product will usually contain a number of distinct, underlying copyrights. For example, the product may contain copyright with respect to any of the following (each of which may have separate copyright owners):
[17] Depending on the complexity of the product and the number of persons involved in its production, a number of copyright clearances or authorisations may be required. Failure to obtain just one of those clearances or authorisations is capable of preventing use of the product if objection is raised by the relevant copyright owner.
[18] An issue of the highest priority in multimedia development is to ensure that the owner of a multimedia product owns copyright in all components of the product, or if it cannot own copyright in some components, to ensure that at least it is authorised to use those components in accordance with the intended use of the product.
[19] In Australia there is anecdotal evidence that the growth of the multimedia industry is being retarded by difficulties which multimedia developers face in identifying owners and obtaining copyright clearance for the use of pre-existing material which a developer wishes to incorporate in a multimedia product. Despite these difficulties, the multimedia industry is growing at a significant rate in Australia as it is in other countries and is generating tremendous wealth. If due attention has not been paid to the copyright clearance issue, then we may see a spate of litigation by the owners of underlying copyrights. Copyright clearance problems may to some extent be resolved with the establishment of Electronic Copyright Management Systems which I will explore later in this paper.
[20] An added problem with multimedia development in Australia is that multimedia is not the subject of separate copyright protection under the Copyright Act 1968. This means that if an owner wishes to protect a multimedia product in entirety it must be able to classify that product under an existing category of copyright protection. Depending upon the nature of the product, it could be classified as a computer program, a compilation, a cinematograph film or a dramatic work.[6] The issue is important for two reasons: first, the scope of protection for the product is dependent upon its copyright classification. For example, if the product is classified as a cinematograph film, the rights available are significantly fewer than those available if the product is classified as a computer program. Secondly, there may be elements of the product which do not even have separate copyright protection, such as design and functionality.[7] Despite compelling reasons for doing so, there is no proposal to amend the Copyright Act 1968 in order to give multimedia products separate copyright protection, although the Copyright Law Review Committee has recently given the matter consideration.[8] The United States does not appear to have this classification problem because the definition of 'audiovisual works'[9] is wide enough to extend to interactive multimedia works.[10]
[21] Because a multimedia product is comprised of components which are capable of their own copyright protection, developers of the product must take appropriate steps to ensure that copyright in the underlying components is not infringed. The focus should be upon each underlying component to consider the following:
[22] Legal advice may often be needed in order to answer the above questions. I consider that the last question raises one of the most difficult and vexing issues in the context of multimedia and Web development, and it will form the basis of the remainder of the 'Management of Inputs' section of this paper.
3.2 The Position of Employees
[23] Both in Australia [15] and in the United States [16] copyright in works created by an employee in the course of or within the scope of their employment is generally vested in the employer. In the United States such work falls within the definition of a 'work made for hire' [17] .
[24] A multimedia developer should not assume that simply because an employee contributes to the creation of content for a product the developer will own copyright in the content. The developer should also:
[25] If after going through the above exercise the developer remains unsatisfied that it has ownership of copyright in the content, then an assignment or licence of the copyright should be negotiated with the employee.
3.3 Independent Contractors
[26] With the exception of certain commissioned material and material produced under the direction or control of an Australian government, copyright in material created by an independent contractor in Australia will, subject to contrary agreement, lie with that contractor under the provisions of section 35 of the Copyright Act 1968. Therefore it is most important for a multimedia developer to ensure that it obtains from the independent contractor an assignment of, or a licence to use, that material.
[27] Because of its finality and lack of continuing conditions, an assignment of copyright obviously makes for more efficient content management. However, if multimedia developers desire the convenience of an assignment then they must be prepared to pay for it. It must also be recognised that for practical purposes not every component of a multimedia product will be capable of assignment. For example, if I engage a contractor to assist with development of my Web site, I cannot expect it to assign to me copyright in the 'tools of trade' (such as templates and other standard background material) developed by that contractor for the purposes of Web site development. Under such circumstances a licence is the appropriate option.
[28] In the United States the position is a little better for the developer of a multimedia product who may own copyright in an underlying component if that component is considered to be 'work made for hire'. The definition of 'work made for hire' extends to certain specially commissioned works, including work 'specially ordered or commissioned' for use as part of an audio-visual work [18] and which would, in turn include most multimedia products.[19] In order to qualify as 'specially ordered or commissioned' work made for hire, the parties must agree in writing that the work shall be considered a work made for hire. If the material cannot be classified as 'work made for hire' then a licence or assignment should be obtained from the copyright owner.
[29] A licence in respect of copyright material to be used in Internet transactions should preferably be:
[30] When engaging an independent contractor to assist with development of a multimedia product, a developer should not assume that the contractor will have the right to assign or licence to the developer all components of the required deliverables. Often the contractor's deliverables will be built on software platforms owned by third parties, and this is particularly the case with Web site development contractors. It is therefore important to obtain from such a contractor a warranty that appropriate clearance has been obtained in respect of copyright owned by third parties, coupled with an indemnity in support of that warranty.
3.4 Moral Rights
[31] Multimedia developers in Australia will soon need to grapple with the issue of authors' moral rights, a legal concept derived from continental Europe. Under the Copyright Amendment Bill 1997 which has recently been passed into legislation by the Australian parliament, it was also proposed to introduce two new moral rights for authors of literary, artistic or musical works, and for films. These are a right of integrity (to object to distortion, mutilation or objectionable treatment) and a right of attribution (to have authorship of a work acknowledged). The Bill provided for those rights to be waived, but not assigned. Similar rights already exist in the United States, but only in respect of certain types of work of 'visual art'. [20] The schedule to the Copyright Amendment Bill 1997 which incorporated the moral rights provisions was withdrawn at the last minute due to concerns expressed by authors with respect to the waiver provision. It is anticipated that the schedule will be re-introduced to parliament at a later stage.
[32] In my opinion, moral rights are particularly important in the context of multimedia development for two reasons:
[33] Multimedia developers must address the issue of moral rights in their content management strategies. The importance of moral rights to authors should not be underestimated.
3.5 Clearance from Third Party Copyright Owners - Hyperlinking
[34] Copyright management issues can be difficult when dealing with works created by employees and independent contractors. But the greatest problem faced by multimedia developers who wish to reproduce existing content in their product is to identify the copyright owner of that content and to obtain appropriate authorisation for use of the that content in the product. Rights clearance has been identified as currently one of the highest costs involved in the production of multimedia products.[21]
[35] Because of the problems associated with copyright clearance, the copyright management process is obviously enhanced if the need for clearances is kept to a minimum. Frequently developers of Web-based products use hyperlinking to incorporate in their own product Web content owned by other parties. Whilst those parties can often be identified and contacted by e-mail in order to gain copyright clearance, the extent of a Web-developer's authority to hyperlink to other sites without the express licence of the copyright owner remains a burning issue, and has been the subject of litigation. Both Australian [22] and United States [23] intellectual property law recognises that a licence to use or deal with particular material can be implied from circumstances surrounding publication or distribution of that material.
[36] As a Web site is accessed by a browser copying material contained in the site into the RAM (random access memory) of the browser's computer, it seems clear that an implied licence is given by the owner of the site to copy the material in that manner, provided that the owner owns all underlying copyrights in the site or is otherwise authorised to grant licences in respect of them. This proposition is supported by the Copyright Amendment (Digital Agenda) Bill 1999 which will if enacted provide that ephemeral copies made in the course of communicating to the public will not infringe the reproduction right owned by the copyright owner.[24]
[37] The question which has not been judicially decided in Australia is whether a Web-page owner is deemed to grant an implied licence for its home page to be hyperlinked to another site by use of the URL (Universal Resource Locater) of the home page or some other simple link. Some commentators have indicated that the answer is a cautious 'yes'.[25] Surely there must be an implied licence, as linking is the very essence of the World Wide Web. Having said that, it may be open to the owner of the home page to explicitly refuse a licence to hyperlink.
[38] A further and more difficult issue which arises in respect of hyperlinking is the scope of any implied licence. In particular there has been some uncertainty as to whether an implied licence extends to 'deep' hyperlinking and 'framing'.
[39] Probably the two most celebrated cases to date involving hyperlinking have been the Shetland Times case [26] and the Total News case [27] . Unfortunately for those requiring the comfort of legal precedent, both cases have settled without a final judicial determination, but the terms of settlement of each case may give some guidance as to the scope of any implied licence to hyperlink. Whilst the terms of settlement of those cases do not have any binding effect on other parties, a court can imply licence terms from custom in a particular trade [28] and trends in such settlements in the Internet industry may therefore be relevant.
[40] In the Shetland Times case the plaintiff was a long-established daily newspaper which published in traditional format, and also maintained an Internet site. Shetland News was an exclusively Internet-based news service. The Shetland News Web site contained headlines which served as hyperlinks to articles on the Shetland Times site. Those hyperlinks enabled direct access to the relevant article in the Shetland Times Web site, many of which articles were contained in sub-pages [29] . This meant that a person linking to an article in the site could by-pass the Shetland Times home page and go directly to a sub-page of the site. This process is known as 'deep' hyperlinking. It has become a contentious issue because 'deep' hyperlinking means that advertising material contained in a home page can be by-passed, together with the site owner's proprietary information.
[41] The Shetland Times was granted an interim edict or injunction to prevent hyperlinking because a question arose as to whether copyright existed in the headlines. The matter did not go to trial and settled in November 1997. The terms of settlement [30] enable the defendant to create hyperlinks by means of headlines to the plaintiff's Web site subject to the following conditions:
[42] These terms of settlement indicate a preparedness on the part of the Shetland Times to allow hyperlinks to its home page. They also suggest that a Web site owner which derives revenue from advertising material contained in its home page may only permit 'deep' hyperlinking if steps are taken to ensure that the home page is not completely by-passed.
[43] Another significant hyperlinking case is the Ticketmaster v Microsoft case which settled in February 1999.[31] In that case Ticketmaster alleged that Microsoft improperly used Ticketmaster's name and logo on a Microsoft Web site called 'Seattle Sidewalk'. Of particular concern to Ticketmaster was that Microsoft used 'deep' hyperlinks which enable a user to bypass information, including advertisements and polices on Ticketmaster's home page and go directly to sub-pages which enable the on-line purchase of tickets from Ticketmaster. The pleadings between the parties shed some light on what is and what is not acceptable hyperlinking behaviour. In its reply to Microsoft's counterclaim, Ticketmaster stated that its action does not attack the use of hyperlinks in general, but attacks Microsoft's use of 'deep' hyperlinking to sub-pages on the Ticketmaster Web site. Ticketmaster was concerned that the use of 'deep' hyperlinks diminished the advertising revenue available to it and in turn increased Microsoft's advertising revenue. Whilst the parties agreed not to disclose the terms of the settlement, Ticketmaster has acknowledged that Microsoft has agreed to cease the use of 'deep' hyperlinking to sub-pages on the Ticketmaster Web site.
[44] The Shetland Times case and the Ticketmaster case suggest that any implied licence by a Web site owner to hyperlink does not extend to 'deep' hyperlinking to sub-pages if it would by-pass advertising or other information valuable to the owner which is contained in the home page. Another issue is whether the scope of an implied licence granted by a Web site owner extends to the display of the owner's site within a 'frame' on the site creating the link. 'Framing' divides a Web site into separate windows, each displayed within a separate portion of the Web browser's screen. Each window functions independently and operates as a separate Web page within the originating Web site. The windows are usually hyperlinked, and this enables users to effectively move from site to site without having to open a new screen or closing down a particular window [32] .
[45] The issue of framing arose in the Total News case. In that case action was taken by The Washington Post, Cable News Network Inc, Reuters News Media Inc and others against Total News Inc, Datapix Inc, Grouper Technologies Inc and individuals associated with those corporations. Total News Inc provided a Web-based news service in which Total's Web site incorporated hyperlinks to the plaintiffs' Web sites. Total created links using framing technology so that a plaintiff's site did not fill the screen when the link was activated by a user, but instead part of a plaintiff's site was inserted in a window designed to occupy only a portion of the screen. When a link to a plaintiff's site was activated, the plaintiff's URL did not appear on the top of the screen as it normally would, and this led to some confusion as to ownership of the sites within the frame.
[46] It is evident from the plaintiffs' claim [33] that a major concern was that by juxtaposing advertising sold by the defendants against advertising sold by the plaintiffs on their own sites (and also by obscuring the plaintiff's advertising) the defendants were interfering with the plaintiff's contractual arrangements with their advertisers. The defendants' activity created a clutter of competing advertisements and devalued advertising material on the plaintiffs' sites which were placed there in the expectation that they would appear in a certain location and be of a particular size.
[47] The Total News case settled on 6 June 1997. The terms of settlement [34] include the following:
[48] Whilst the emphasis of this paper has been on the effect of copyright law on the use of on-line content, the practice of 'framing' brings into consideration laws in the United States and Australia relating to fair trading. In Australia, if the practice of framing misleads or deceives persons browsing the site by implying that there is approval or sponsorship between the site within the frame and the site creating the link, (as it may well do if the 'framed' site's URL does not appear at the top of the screen) then such practice may be misleading and deceptive conduct in breach of sections 52 and 53(c) of the Trade Practices Act 1974. However a disclaimer of association may avoid such a breach [35] . In the United States, unauthorised framing is unwise in view of the significant number of potential causes of action which that activity can give rise to including (as claimed in the Total News case) misappropriation, federal trademark dilution, trademark infringement, false designation of origin, false representations and false advertising, trademark infringement and unfair competition under state law, dilution under state law, deceptive acts and practises and tortuous interference [36] .
[49] What guidelines are offered by the Shetland Times case, the Ticketmaster case and the Total News case when exploring the scope of an implied licence to hyperlink? I suggest that the guidelines are as follows:
3.6 Use of Disclaimers
[50] In light of the above cases and possible reaction to them by Web site owners (e.g. by imposing restrictions on hyperlinking), it is prudent for a Web site developer to check whether there are any restrictions in respect of a site which the developer proposes to link to its own site or product. The developer should also insert its own disclaimer incorporating the following:
[51] The disclaimer should be located on the home page and on each sub-page.
4 Management of Outputs
[52] Sound management of 'inputs' is of fundamental importance for any person involved in the development of Web sites and other multimedia content. Protection of that content from the point of transmission in an open network (management of 'outputs') creates further challenges, although I do not consider that those challenges are as formidable as some people believe.
[53] The content protection measures to be adopted will differ depending on whether the content is delivered in an open environment free of charge to the end-user, in a controlled access environment, or a combination of both. In any such environment the copyright owner must guard against unauthorised use by the end-user. In a controlled access environment the copyright owner may also need to guard against the interception of data (security breach or 'hacking').
4.1 Interception of Data and Encryption
[54] In my experience, unauthorised use of content by an end-user is by far a greater concern than interception of data, at least for the purposes of copyright protection. Although 'hacking' will always be with us, encryption technology will generally be adequate to protect data from the point of transmission to the point of reception by the end-user, and will ensure message integrity.
[55] A particularly effective form of encryption is asymmetric public key cryptography which provides strong message integrity and confidentiality. It also provides for authorisation. Asymmetric public key cryptography is based on a pair of keys, one public and the other private. A message which is encrypted with a public key can only be decrypted with the corresponding private key, and vice-versa. A certification authority is required to certify that a person's public key is paired with a private key belonging to the same person. The public key is made available in a public key directory.
[56] Whilst cryptography is particularly important in the context of electronic payment transactions in an open network, it should not be necessary to resort to such technology for the protection of content transmitted over such a network, unless the content is particularly sensitive or valuable, or if the person making the transmission is under a legal obligation to provide for security. However, encryption may be desirable to the extent needed to protect watermarking and other rights management technology that may be incorporated in the data.
4.2 Unauthorised Use by End-users
[57] Far greater than the risk of unauthorised interception of on-line content is the risk of unauthorised use by the end-user. Of course, this is also a problem with content distributed in traditional format, but it becomes a greater problem when content is delivered on-line because:
[58] There are a number of measures which can be taken to minimise end-user misuse. Copyright owners should understand that not all unauthorised use is malicious. Unauthorised use can be minimised if end-users have a clear understanding of the terms and conditions upon which the content has been provided to them.
4.3 Conditions of Use
[59] Web sites and content transmitted on-line should define the scope of the licence granted to end-users to access the material. In light of the uncertainties surrounding the scope of an implied licence to hyperlink, it is appropriate for the conditions of use to state whether such a licence is granted and to define its scope. The conditions should contain an acknowledgment by the end-user that he or she is responsible for the consequences of downloading or further copying of linked material.
[60] Some doubt exists as to the binding nature of such conditions of use, as the end-user may not see them prior to accessing the content[37] . However in a controlled access environment where payment is often deemed to constitute acknowledgment of the terms of use, this should not present such a difficulty. Whilst doubt may exist in respect of the contractual nature of conditions of use, they may at least serve to define the scope of the licence to use the material. In the case of a Web site, the conditions should appear on the home page and on all sub-pages.
4.4 Use of Copyright Notices
[61] There are no requirements for copyright notices under the Australian Copyright Act. Under the United States Copyright Act a proper copyright notice should contain:
[62] It is no longer necessary for the notice to state 'All rights reserved'. That statement is essentially a legacy of the now moribund 1911 Buenos Aeries Convention. The Berne Convention forbids requiring a copyright notice as prerequisite for the existence of copyright. In the United States prior to the 1978 Copyright Act, publication of a work without a proper copyright notice could result in a complete loss of copyright rights [38] . However, incorrect use of the copyright notice in the United States can still result in loss of copyright if the date contained in the notice is incorrect [39] .
[63] Copyright notices are used today not just in the United States but also in Australia and other jurisdictions where the notices have no statutory basis. Where copyright material is transmitted over the Internet, it is advisable that it contains a copyright notice for the following reasons:
[64] In the case of a Web site, the copyright notice should be displayed on the home page and on all sub-pages.
4.5 Copyright Registration
[65] Under the Australian Copyright Act 1968, there is no system for registration of copyright material and no formalities are required for the existence of copyright. Registration is available in the United States and confers a number of benefits including an entitlement to statutory damages and attorney's fees [42] . Therefore, depending on the nature and value of the material, registration of material to be distributed on-line in the United States may be advisable.
4.6 Inherent Protections
[66] When considering the lengths to which a copyright owner should go in order to protect material from unauthorised use by end-users, it should be acknowledged that the material itself may contain inherent or practical protections. In particular:
4.7 Technical Protections
[67] It has already been demonstrated how encryption technology can operate effectively to protect on-line content between the point of transmission and the point of reception. An increasing number of technical protections are also available to guard against unauthorised use by end-users. There is a school of thought amongst lawyers that copyright owners should look to the law rather than technology to protect their material, as copyright law itself is a response to technological advancement. I do not subscribe to that school of thought and consider it outdated. Developments in information technology have made corresponding judicial and legislative reaction appear to move at glacial speed. Copyright owners cannot afford to sit back and wait for the law to catch up.
[68] I have previously discussed copyright owners' concerns in relation to 'framing' and 'deep' hyperlinking. 'Netscape World' offers advice in relation to technological methods of preventing framing [43] . Intellicast, MSNBC's weather service has recently deployed a procedure written with Netscape Servers' software tools whereby a Web page will accept only those URL requests which originate at a specific address [44] . A Web site developer should be able to use such a procedure to ensure that any hyperlinking can only be direct to the home page of the Web site.
[69] It is argued that technological responses to the interception of data and unauthorised use of copyright material distributed on-line can lead to a technological 'arms race'. I do have some sympathy with this argument. Consider this example: some on-line publishers use software which prevents cutting and pasting of material. Whilst that software is effective to some extent, it will not prevent a 'screen dump'. Bellcore Inc, a United States corporation has created a 'flickering screen' technology that creates a readable image which cannot be screen dumped.
[70] As much as I am sympathetic with the argument that content protection should not get caught up in a technological arms race, we need to recognise that technological protection has its merits in an era when advancements in information technology have exposed inadequacies in copyright law. Protection of on-line content may in the future involve a symbiotic relationship between law and technology. This is already apparent in Articles 11 and 12 of the WIPO Copyright Treaty which require member countries to provide remedies against persons interfering with authors' protection technology and rights management information. Insofar as Australia is concerned, this obligation is addressed in clauses 85 and 87 of the Copyright Amendment (Digital Agenda) Bill 1999. What is important is that a technical response to copyright protection should only be made after the owner assesses whether it is really necessary to respond in that manner.
5 Electronic Copyright Management Systems - The Way Ahead?
[71] The growth in Web-based content transmission highlights copyright clearance problems which arise with the development of multimedia products. It is apparent that the growth of the multimedia industry will be further curtailed if we continue to rely upon traditional methods of copyright clearance. In recognition of this problem, multimedia developers will look to Electronic Copyright Management Systems (ECMS) as a means of managing the copyright clearance process and also as a means of providing for payment and monitoring the use and re-use of content in open networks. One such ECMS is the IMPRIMATUR (Intellectual Multimedia Property Rights Model and Terminology for Universal Reference) project [45] .
[72] A recent report prepared for the Australian Government [46] expressed a preference for IMPRIMATUR over the ECMSs because it is an open, rather than proprietary, system and is available to be used by any application involving dealings in digital information.
[73] The IMPRIMATUR system includes the following:
[74] ECMS may offer a solution to problems with copyright clearance and unauthorised use by end-users. It remains to be seen how effective they will be.
6 Conclusion
[75] When the topic of copyright and the Internet is raised, the reaction is often to focus upon the dilemma of trying to protect content in an apparently anarchic environment. In this paper I have attempted to demonstrate that adequate protection can often be found with a sensible use of legal, technological and practical measures. Whilst content protection is important, copyright owners embarking upon Internet (particularly Web-based) distribution of content must also be satisfied that they have the entitlement to use that content in the way they intend it to be used. Any content management plan must therefore address both issues.
[76] The challenge for lawyers advising copyright owning clients who transact over open networks is to come up with a content management plan which facilitates transactions and wins the confidence of the client. This will involve thinking outside the traditional square. I suggest that such a plan be based upon respect for authors, users and other copyright owners. Failure to do this will result in litigation of the kind we have seen in the Shetland Times case and the Total News case.
[77] As copyright owners turn to the Internet as a means of distributing their content, they are now seeking commercial advantage from a phenomenon that owes much of its early growth to the free sharing of information. If recognition of that spirit can be factored into a content management plan, then in the long run it may be to the advantage of copyright owners.
1 Those differences relate to such matters as systems of registration and provisions for notices (of which there are none in Australia), protection of databases, duration of copyright, categories of works protected, moral rights and government ownership of copyright. Back to Text
2 See Religious Technology Center v Netcom On-line Communication Services Inc (1995) 33 IPR 132 (Scientology Case). Back to Text
3 See [Internet] URL: http://law.gov.au/copyright_enews/digital_agenda/exposure_draft.rtf Back to Text
4 Clauses 43 and 81 of Copyright Amendment (Digital Agenda) Bill 1999. Back to Text
5 Proposed European Union Directive on Harmonisation of Certain Aspects of Copyright and Related Rights (COM/91/0628) Official Journal C108 7/4/1998 p006. Back to Text
6 See Jennifer Douglas, 'The Challenge of Multimedia - Reform the Copyright Act?' (Dec 1996) Australian Computers and Law Journal 24. Note also the recent decision of the Federal Court of Australia in Galaxy Electronics Pty Ltd v Sega Enterprises Pty Ltd (1997) 37 IPR 462 which held that the visual effects generated by multimedia software in a computer game were classified as a 'cinematograph film'. The multimedia software itself received separate protection as a 'literary work'. Back to Text
7 See Australian Copyright Council, 'Multimedia Producers and Copyright' (1997), Publication #87V4 at 33. Back to Text
8 See Copyright Law Reform Committee, Simplification of the Copyright Act 1968: Part 2 (Commonwealth of Australia, February 1999) at [Internet] URL: http://www.agps.gov.au/customer/agd/clrc/homepage.html at para 7.16. Back to Text
9 17 U.S.C 101. Back to Text
10 See J.D.Brinson and M.F.Radcliffe, 'An Intellectual Property Law Primer for Multimedia and Web Developers' [Internet] URL: http://www.eff.org/pub/CAF/law/ip-primer Back to Text
12 Sections 40-42, Copyright Act 1968. Back to Text
13 17 U.S.C 107. Back to Text
14 See [Internet] URL: http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.3048: Back to Text
15 Section 35 Copyright Act 1968. Back to Text
16 17 U.S.C 201. Back to Text
17 17 U.S.C 101. Back to Text
18 17 U.S.C 101. Back to Text
19 Brinson and Radcliffe, op.cit n.10. Back to Text
20 17 U.S.C 106, 106A. Back to Text
21 Bridget Godwin and Bruce Donald, 'Intellectual Property - Preliminary Submission on Copyright Issues', in DEETYA, Learning for Life : Review of Higher Education Financing and Policy (Canberra: Australian Government Publishing Service, 1997). Back to Text
22 Timothy Hughes, 'Intellectual Property and Browsing the Web', in Internet Law Anthology (Prospect Media Pty Ltd, 1997) at 55. Back to Text
23 Gregory M.Luck, 'The Implied License: An Evolving Defence to Patent Infringement' (1998) IP Litigator US 13. Back to Text
24 Clauses 43 and 81 of Copyright Amendment (Digital Agenda) Bill 1999. Back to Text
25 Timothy Hughes, op.cit. n.22, and see Australian Copyright Council, 'Copyright and the Internet' (1997) Publication #92 V2 at 17. Back to Text
26 Shetland Times v Wills and Zetnews Ltd, (Sess. Cas. Oct 24, 1996). Back to Text
27 The Washington Post Company and Ors v Total News Inc & Ors. 97 Civ.1190 (PKL). Back to Text
28 Lahore, vol 1, 'Copyright and Designs', (Australia: Butterworths) para 26,000, (1996 -). Back to Text
29 See Jeffrey R. Kuester and Peter A. Nieves, 'Hyperlinks, Frames and Meta-tags: An Intellectual Property Analysis' (1998) 38 IDEA: J.L. & Tech. 243 at [Internet] URL: http://www.patentperfect.com/idea.htm. Back to Text
30 See [Internet] URL: http://www.shetland-news.co.uk/headline/97nov/settled/settled.html. Back to Text
31 See 'MS, Ticketmaster Bury Hatchet', Wired News 17 February 1999 at [Internet] URL: http://www.wired.com/news/news/email/explode-infobeat/business/story/17943.html. Details of the Ticketmaster case (and pleadings) are taken from J R Kuester and P A Nieves, op.cit n.29. Back to Text
32 Kuester and Nieves, op.cit n.29. Back to Text
33 See [Internet] URL: http://www.ljx.com/internet/complain.html. Back to Text
34 See [Internet] URL: http://www.ljx.com/internet/totalse.html. Back to Text
35 Timothy Hughes op.cit n.22 at 57. Back to Text
36 See Kuester and Nieves op.cit n.29. Back to Text
37 Tamir Maltz, 'Copyright, Hyperlinks & Network Information Resources - Changing the Contours of Intellectual Property Law', in Internet Law Anthology, (Prospect Media Pty Ltd, 1997) at 66. Back to Text
38 See Oppedahl & Larson, 'General Information about Copyrights' [Internet] URL: http://www.patents.com/copyrigh.sht. Back to Text
40 17 U.S.C 401(d) and 402(d). Back to Text
41 Lahore op.cit n. 28, para 34,135. Back to Text
42 17 U.S.C 412. Back to Text
43 See Chuck Musciano, 'Netscape World- the best way to frame-proof your pages' (May 1997) [Internet] URL: http://www.netscapeworld.com/netscapeworld/nw-05-1997/nw-05-html.html and Chuck Musciano, 'Netscape World - still more tricks to frame-proof your pages' (July 1997) [Internet] URL: http://www.netscapeworld.com/netscapeworld/nw-07-1997/nw-07-html.html. Back to Text
44 Kristi Coale, 'Intellicast Smartens Up to Banner Bypass', WiredNews 28 March 1997, [Internet] URL: http://www.wired.com/news/technology/story/2844.html. See also Kuester and Nieves op.cit, n.29. Back to Text
45 See IMPRIMATUR site at [Internet] URL: http://www.imprimatur.alcs.co.uk/. Back to Text
46 See Godwin and Donald op.cit, n. 21. Back to Text