chapter  4
43 Pages

Copyright and the internet

Introduction The internet has created new methods of delivering and disseminating creative content online that have had a signifi cant impact on the market in creative works; for example in 2014 the revenue generated for the music industry from digital channels matched that from physical format sales for the fi rst time. 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?