Table of Contents
The Internet has allowed ideas and information to be freely and easily communicated on an unprecedented level. The ethos of this sharing was entirely cooperative, being primarily to disseminate results among a scientific community, and did not allow for the ownership of information. As the Internet has matured, it has had to come to terms with such restrictions as copyright, patents and libel laws, though these laws and restrictions have had difficulty in keeping up with the technology.
Patent law is undergoing changes in an attempt to adapt it to the new digital world. In the process, many poor decisions have been made and many bad patents have been granted.
In Europe (and in the UK), there is a fairly clear definition of what is patentable:
|--EUROPEAN PATENT CONVENTION: PART II - SUBSTANTIVE PATENT LAW, Chapter I, Article 52|
Whilst this is (fairly) clear, there have been exceptions made to rule 2(c) on the basis of software being part of a manufacturing process. The large software corporations continue to lobby for software patents.
In the US, there is a more complicated situation, with patents being granted or denied on a variety of criteria. For an overview of the current situation in the US, read the Patent Law Primer. For the latest patent and policy news (again US biased), there's a website run by the O'Reilly publishing group, who have interests in the Open Source ethos.
Should we allow the patenting of information and ideas? What about computer programs, or even programming algorithms and techniques? See Ludlow (1996) for more details.
Unisys GIF/LZW algorithm.
Compression algorithm patent that was violated in many web-graphics, and by most image-editing software
.png format developed directly in response by the open source community
Patent has now expired in most countries.
amazon.com v. Barnes & Noble.
Amazon claims patent on 1-click ordering system (1999)
Injunction granted preventing wide use of 1-click technique, but later repealed
Dispute settled out of court (2002)
Amazon successfully defends patent in court against IPXL Holdings (2004)
Enthusiast shows prior art, forcing Amazon to narrow patent (2007)
BT's Hidden Page Patent.
Proof of “prior art” needed to undermine BT's case
See for example, Michelle Delio's (2002) report (Move Over, BT: He Invented Links) in Wired News.
Should such a fundamental and simple technology be patentable
Perhaps the problem here is that it is easy to “dress up” a very simple idea or process as a highly technical programming technique, which can often get past the Patent Office scrutineers.
In recent years, the system of allocation of names on the Internet has given rise to a new form of profiteering. Before many of the larger corporations became aware of the need for a corporate website, opportunists would register their name as an Internet domain name, then wait for the company to stir, realise that it needed the name, and then offer the name for sale for a large sum. Many of these opportunists did take significant amounts of money, though the practice was always considered dubious. Several court cases were filed against them, but the results were variable, almost always being settled behind closed doors, well before a judgement was reached.
However, in one case, a company that had registered the names of a number of UK businesses as domain names was forced to relinquish those names, as their use could be regarded as “passing-off”, i.e. the use of a trademarked name to imply that a website has a connection to the trademark's owner. This is a direct violation of the Trade Marks Act 1994, which covers use of any registered trade mark in any context. In this case, the company had speculatively registered names such as marksandspencer.com, sainsburys.com and britishtelecom.com, and initially offered the names for sale to the companies concerned, but with the implication that they would be sold to the highest bidder if each company refused to buy outright. It was this intention that forced the judgement against the speculators.
Today, most cases are settled out of court, and usually within the mechanisms for dispute resolution provided by the registrar (in the UK, this is Nominet.UK, who maintain an index of UK case law relating to this).
The practice of registering domain names which are underused but still attract some traffic is called Domain Parking. This is common within Internet Service Providers, who register potentially useful domains and offer them for sale, but in the meantime add revenue-generating material to the site, to offset the cost of registration.
It's also common now to find registrations of domains created through common
typographical errors on well-known domains, which is sometimes known as
2008). For example, a typosquatter may register the
bcc.co.uk' domain name, and place advertising or other revenue
generating material on that domain, in the hope of users typing '
instead of '
bbc' in their browser's address bar.
Copyright law exists primarily to protect your investment of research, analysis or creativity as a producer of media and ideas. Anything that you yourself create can be claimed as copyright. So when you create a web page, all that you write as original material is yours, and can't be used by others without your permission.
However, creating web resources often involves reusing other people's original works, and there the boundaries become blurred. How much rewriting must you do to claim it as your own work? What if you incorporate graphics, HTML code or scripts from other's sites?
The hyperlink positively encourages the author to link to other people's material. HTML also makes it possible to seamlessly incorporate outside material into web pages. Is this appropriate?
And of course, the web is an open, accessible medium where it's easy to copy and paste material without thinking about copyright - so how do authors protect their creations?
In the test case mentioned here, a website owner was found to be reusing the news reports of another site, presenting them as articles that he had written himself. This is considered by the UK courts as 'passing off', as presenting information not owned by you as your own work.
Other legislation and cases that apply here include the Copyright and Rights in Databases Regulations (1997), which safeguards the effort invested in data gathering and encoding for large-scale databases, particularly those made available to the public. It prohibits the reuse of significant amounts of information contained in the database by a third party without permission or acknowledgement. This was recently tested in the case of the British Horseracing Board vs. William Hill.
“Art is making something out of nothing and selling it.”
Copyright is, at present, of finite duration. If you claim copyright on a work, then you have a number of years to exploit that work in whatever way you see fit.
The duration varies according to the type of media and the role of the copyright holder, so for a performer releasing a hit record, the copyright expires 50 years after the year of the performance. But for an author writing a book, the copyright lasts 70 years after the author dies. For a full table and necessary explanations and clarifications, see Cornish (2007).
Traditionally, the concept of a “commons” relates to land use, and we often think of common land as having shared ownership. In fact, land, facilities or objects deemed to be part of the commons are owned by everyone and no-one.
Think of the street outside your house. Most likely, it is maintained by the local council, who take money from you to do so. However, they don't own the land in the normal sense, though they have responsibilities towards it. Everyone has equal access to it, and can use it almost as if it were their own.
In intellectual property terms, the equivalent is the creative work that has fallen (or been placed) into the public domain. No-one can claim ownership of it, and hence cannot charge royalties for its use. Everyone should have equal access and equal right to use the work.
In the early nineties, Eric Eldred was a hobbyist who scanned works of literature and placed them onto his website, so that anyone could access them. He took works which had passed out of copyright, and made them available for free in a new format. However, as he accumulated a larger and larger collection of works, he began to hit a problem. More recent works, which were nearing their release from copyright, were suddenly put out of reach of this cultural service, through the extension of the copyright term. And this happened repeatedly.
Eldred began to question why this was happening, and why some works never seemed to be released from the restrictions of copyright (Lessig 2004, Ch.13). He argued that this extension, brought about by the 1998 Sonny Bono Copyright Term Extension Act (CTEA), and if perpetuated would lead to indefinite copyright for certain works, and thus was unconstitutional (violating the first amendment).
The US Supreme Court upheld the CTEA, but only after a massive lobbying effort on both sides, by libraries and libertarian groups on one side, and by the music and film industry on the other.
The limitations of traditional media have meant that passing off a copy as an original has been difficult to achieve and easy to detect if done on a large scale, though generally copies have become acceptable in quality for personal use. This has led to a concept of “fair use”, which permits making personal backups etc., of traditional products. Certain copyrighted material is subject to fair use when quoted, criticised or parodied, though much material (especially new media) is not covered, though most of us have developed our own idea of fair use, as applied to the text, music and video we use.
With digital media, we need to re-examine the fair use idea, and there have been several attempts to formalise it in the courts, with little success. Many copyright holders still consider any copy to be an illegal one, and some refuse to publish works digitally because of this.
These problems are similar to those inherent in protecting the copyright of software, which has never been satisfactorily solved.
In an attempt to curb the illegal distribution of music and video, some companies have introduced copy-protection on CDs and DVDs. The CD protection has been particularly problematic, as it relies on the user not being able to read the disk in a purely digital form. It works by introducing errors which are normally corrected by most audio CD players, but which cause the digital copy to break or skip in computer CD players, which don't have error correction mechanisms.
Of course, the protection was quickly broken by hackers reverse-engineering the error correction mechanism, by using more sophisticated CD players, or in one case, by obliterating a section of the disk using a marker pen... within hours of a CD being released, there are usually digital copies on the net.
In fact, there is a subculture on the Internet now which competes to produce the earliest digital copies of the latest films and music, generated by taking hidden video cameras into premiere showings, leaking material from the record companies themselves, and so on.
Companies such as Microsoft have a difficult position; they want to tap into the popularity of digital media and encourage its use, but in such a way that the powerful media companies do not object to.
Password protection. A password is sent independently of the download, which is then needed to use the media or software. Ineffective, since passwords can easily be exchanged with the copied file.
Digital signatures. ensuring authenticity of both supplier and consumer, can be used to prevent unauthorised playing or copying;
Encrypted downloads. attempts to copy-protect the media, preventing use without authorisation;
Digital Rights Management. encompasses all these ideas, usually integrated into a digital media player;
Micropayments. A very small charge (perhaps less than 10p) is made for each view or play, but accumulates to significant amounts if sufficiently popular. The key to this is the ease of making the payment.
Media tax. In some countries, a more rudimentary solution has been tried, which tries to add a surcharge on blank media used for copying, the revenue from which is used to compensate copyright holders. In most cases, this has been quickly abandoned, not least because the compensation mechanism is usually too complex to work well. In addition, there is a sense that this approach legitimatises the copying process - if the downloader is paying the copy-tax, then the act of downloading will seem “less illegal” in some way. Many European countries still use this method for “fair-use” copies for personal use only.
Some commentators are concerned about the implementations of DRM technology that are available, and in particular regarding the way they limit certain actions on the product which would normally be considered “fair use”. In fact, argues Lawrence Lessig [ Code and Other Laws of Cyberspace , 1999], the implementations of “fair use” embedded into these products effectively become the law, since they cannot be circumvented without contravening other laws (such as the Digital Millennium Copyright Act).
Are we consumers, users or owners of media? Some advocates argue that we should move away from the traditional idea of the consumer of media, since the ability to make perfect copies means that nothing is physically lost when media is given away. They also argue that fair use should mean that if we buy media, we should have the right to back up that media, and to copy it for use on any or all devices we own.
Businesses are keen to re-sell us our previous media purchase in new formats (e.g. vinyl, cassette, CD, mp3, SA-CD, DVD-Audio, etc., etc.).
Is copying damaging the music industry? Of course, the music publishers see each digital copy as taking away revenue from their legitimate business. But according to various studies, this is a shaky conclusion; media sales have remained roughly static (even in a time of general market depression in the US), and when interviewed, those sharing media often use it as a 'try-before-you-buy' idea, and buy as much media as before, but make more informed choices about what they buy.
What does the popularity of media sharing tell us? Perhaps the sharing technologies have shown us that we consider the price of music and video to be too high, or not good enough value. The media companies need to reevaluate the way they create revenue, perhaps switching more to 'value-added' products and more 'collectible' packaging, which would make us feel as though we have bought something valuable to us.