ABSTRACT
Introduction The internet has created new methods of delivering and disseminating creative content online that has had a signifi cant impact on the market in creative works. The rate of change can be appreciated by considering that, in 2007, it was forecast that, by 2010, revenue in Europe from online content would reach €8.3 billion, representing a growth of 400 per cent in fi ve years. 1 However, just as computer networks created new ways of committing traditional crime, so they provided new ways of infringing copyright. Some of these issues are the generic ones that have already been identifi ed such as jurisdiction, detection, and enforcement, but others are specifi c to the law of copyright. Cornish and Llewellyn have referred to the internet and copyright as ‘the most infl amed issue in current intellectual property’, 2 and developing uses of this medium continue to challenge the traditional principles of copyright; as Ganley has commented, ‘the internet has ruffl ed the feathers of copyright law’. 3 Indeed, the phrase ‘digital copyright’ is sometimes used misleadingly as an indication of another species of copyright with different rules, rather than an application of the existing rules to the digital environment, together with an attempt to draw an appropriate balance between authors’ and users’ rights in this context. This chapter will consider, in particular, some of the general issues relating to the application of copyright principles to a new medium, together with associated changes in the law in both Europe and the USA, using the practical examples of hypertext links, the operation of search engines and fi le-sharing. Before considering how the law has responded to the issues, we will consider the origins of the problems that have been encountered. 4
As every student knows, copying of material from the vast information source that is the internet is a trivial matter; similarly, the technology also makes it a trivial matter to make existing copyright works available on the internet. Examples of the latter range from individuals putting copyright works on YouTube, to major initiatives such as the Google Print Library Project, 5 but application of the law of copyright to these issues has not always proved to be straightforward and has frequently been controversial. The conundrum at the heart of traditional copyright law is how to balance the respective rights of the creator and user of copyright material. As noted in the Preamble to the Information Society Directive , ‘a fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter must be safeguarded’. 6 It goes without saying that there is an inherent tension between these rights – that ‘confl ict is at the heart of copyright’. 7 How should this balance be struck on the internet? There are those who suggest that the ethos and culture of the internet is radically different from previous media to the extent that copyright is no longer an appropriate vehicle for protecting the rights of authors and creators; because copyright originated and developed in a very different era, it may have outlived its usefulness. 8 One problem with this approach is that although the original culture of the internet may have been one of openness and
inclusivity, the vast and diverse spectrum of both uses and users of the internet now make identifi - cation of a prevailing ethos far more problematic. Others support a relaxation of traditional copyright rules for the purely pragmatic reason that jurisdictional issues and problems of detection make copyright law diffi cult to enforce in practice. In contrast to this, others are of the view that copyright still has a role to play in encouraging imagination and originality in whatever medium is at issue, simply because material continues to be created that is the proper subject matter of copyright protection. 9 In other words, the concept of copyright is still a necessary one, albeit with a recognition that it may need modifi cation or amendment if it is to be able to respond appropriately to contemporary challenges. Schønning 10 points out that the internet is no more likely to lead to a mass breakdown in the copyright system any more than happened when it had to deal with other forms of piracy and illicit copying of easy-to-copy media, such as videos, audiotapes, computer software, etc, and simply concludes thus: ‘. . . surely copyright will survive even this legal and technological challenge.’ Wiese, 11 having reviewed the arguments on both sides, came to the conclusion that there are still reasons to rely on copyright law, that it should not be regarded as a threat to the internet society, and that an appropriate balance between competing interests was possible. He came to the conclusion that a concept that had been developed over decades should be adjusted to fi t the new circumstances rather than abolished – ‘the question is not so much whether copyright can adapt at all but rather how it should adapt’. 12
The existence of copyright protection is assumed to stimulate the creative process and, in this vein, a clause was included in art 1 of the US Constitution giving Congress the power ‘to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries’. But it has always been the case that there is a wider public interest, not only in the creation of copyright works, but also in such works being available for the use and enjoyment of citizens at large. It is commonly stated that the purpose of intellectual property protection in general, and of copyright in particular, is to provide an incentive for creativity by ensuring that creators are justly rewarded for their creativity and that a remedy is available in cases of infringement. In providing creators with control over dissemination and reproduction, the resources that went into the creative process can be recompensed. At the same time, authorised acts and exceptions provide lawful users with certain rights to utilise the material. Taking such factors into account, the law of copyright seeks to balance the rights of the user and the rights of the creator in an optimum fashion. However, what is an appropriate balance in relation to traditional means of dissemination may not be appropriate for the digital environment, in which the distinction between users and creators has been blurred. Materials in a whole host of formats – text, audio, video etc – can now be distributed and copied ‘with extraordinary ease and accuracy’. 13
This chapter will concentrate in the main on issues that have no straightforward parallel in traditional media, including the copyright issues generated by the use of hyperlinks, search engines, fi le-sharing, and including liability issues in relation to both individuals and ISPs. A number of these issues are interrelated and those specifi c to intermediary liability have been examined elsewhere. The discussion in this chapter focuses purely on the application and interpretation of copyright principles in the context of the internet; a fuller picture will be obtained by reading both chapters in conjunction. Disputes that have arisen include those between
traditional newspapers and news websites involving linking to news reports, complaints relating to fi le-sharing by means of software such as Napster, Grokster, and KaZaa, and complaints against search engines and ISPs for facilitating access to copyright material. The burgeoning quantity of user-generated content on the internet on sites such as YouTube, social networking sites, and blogs includes the whole spectrum from content generated by the individuals themselves, which they make available for free to copyright material, or modifi ed copyright material, which is made available in breach of copyright, performing rights, etc. It is perhaps thus not surprising that many users perceive that the internet provides a repository of freely available material and pay scant attention to the rights of copyright holders, if indeed they are even aware that there are such rights holders. How is an equitable balance of rights to be determined in an environment in which a dominant ethos is one of free, and freely shared, material, but also one that has become colonised by commercial operators and those whose living is made by creating and/or trading in copyright works? Digitisation of major collections of papers and books, etc, for example, may be in the interests of those who wish to access their contents, but may not always be in the interests of the copyright holders, especially if the ability to control dissemination would otherwise provide a signifi cant part of their income. 14 Popular opinion may not sympathise with large record companies and publishing houses, 15 but may be more understanding of the plight of the struggling author or musician. The technology itself may provide a means of control and the use of copy protection devices has been enshrined in law in some jurisdictions although not without controversy. 16 Although there are a number of international treaties and conventions on copyright, copyright law is a matter for individual jurisdictions. This raises further questions of how copyright principles that are already enshrined in national laws should be applied and how any lack of global harmonisation is to be dealt with when the medium, itself, is a global one. Millé 17 indicates that the solution itself must necessarily be global; that copyright law needs to fi nd answers to the questions posed by the presence of new modes of intellectual creation, of distribution to the public, and of use and enjoyment of the works; that there is a need to make the treatment given to intangible property uniform at world level; and that administration by an international organisation appears essential. However, some other commentators, having considered the various arguments, have sounded a note of caution about the consequences of being in too much haste to introduce new or amended legislative rules. 18
Hyperlinks The phenomenon of hypertext linking, which allows the user to move from site to site, is now so familiar as to have lost all remaining vestiges of novelty, but is indisputably crucial to the existence and operation of the world wide web. A hyperlink has been judicially referred to as a ‘crossreference . . . appearing on one page that, when activated by the point-and-click of a mouse, brings onto the computer screen another web page’. 19 Linking provides the way in which information is retrieved via search engines and is the way in which users move from site to site. The web pioneer,
Berners-Lee, suggested that it should be possible to link to any piece of information as ‘universality is essential to the Web: it loses its power if there are certain types of things to which you can’t link’. 20 At a practical level, a site with few links is less likely to be found by other users and its worth will also be diminished to the user if he or she cannot travel from that site to another. Conversely, many people will bookmark sites to compile a collection of links to sites relevant to their interests. The number of times different users arrive at a site (the number of ‘hits’) is a useful way of gauging the site’s appeal and popularity, as well as the effi ciency of its links; for commercial sites in particular, the number of hits may be an important way of raising advertising revenue. Given the fact that the world wide web cannot function without links, does the fact of launching a website create an implied licence to link to it? Or could there be something akin to a right to link? 21 Various realworld analogies have been suggested for hypertext links. In Universal City Studios v Reimerdes , 22 it was said that ‘links bear a relationship to the information superhighway comparable to the relationship that roadway signs bear to roads but they are more functional. Like roadway signs, they point out the direction’. An alternative analogy is that of the footnote or reference. Burk explains that ‘the hypertext link is in essence an automated version of a scholarly footnote or bibliographic reference: it tells the reader where to fi nd the referenced material’, 23 and Deveci has made the categorical comment that ‘a link is no different from a citation in hard copy’. 24 However, although a link may conceptually perform both of these apparently disparate purposes, in each case it goes beyond the functionality of the corresponding real-world analogy. As the court in Reimerdes went on to say, ‘unlike roadway signs, [links] take one almost instantaneously to the desired destination with the mere click of an electronic mouse’. The same is clearly true for the citation/reference analogy as graphically explained by Burk: ‘. . . the user’s browser . . . can then retrieve the material from its location, a process that is not only hidden from the user, but far more convenient than physically venturing into library stacks to retrieve hardcopy referenced in a plain footnote.’ The adoption of such analogies could have a potential impact on the liability of the linkor. If a link is merely a pointer that the user may or may not choose to follow, the question is whether the linkor should be liable if the link provides access to unlawful material – specifi cally, in the context of this chapter, to material that infringes copyright. If a link is merely a reference, writers would not expect to fi nd themselves liable for copyright infringement on the basis of an infringement in a work cited in a footnote; why should a different situation pertain in relation to links? To what extent should any additional functionality that links provide affect the potential liability of the linkor?
