Maristela, Don Benito: The Ramifications of Technology on the Existing Copyright Law

INTRODUCTION

A saying most often heard is that the only thing constant is change. The same aphorism applies to almost everything.

With respect to technology, change or innovation has been beyond imagination. Thus, a particular technology which may be the latest today becomes passé and a thing of the past tomorrow.

Technology is one great hallmark of civilization. Without technology, man could have never advanced and progressed. From being mere users of stone implements, man has now fashioned almost every possible gadget imaginable. Out of man’s innate creativity, the arts were born, in particular music and literature. Such creations, though, are granted specific rights vested to the owner and/or its creator. However, with the emergence of certain technologies that seem to infringe on these very rights, an inevitable clash has resulted.

With the development in technology at an almost blinding speed, laws which protect copyright seem to have been rendered archaic and ineffectual. The emergence of these technologies on the one hand, and the failure of copyright laws to adapt to the changing times on the other, have brought to fore two diametrically-opposing views.

Insofar as technologically-savvy people are concerned, copyright laws restrict the further development of technology and the free dissemination of data and information. On the other hand, stakeholders with respect to owners of copyrights and anyone having interest in it oppose, in one way or another, the emergence of these new technologies.

This paper seeks to shed light on the perennial conflict between a continuously evolving technology and that of copyright law. It shall focus on the impact of such technology on the protection granted to copyrights.

BRIEF HISTORY ON THE DEVELOPMENT OF COPYRIGHT

Copyright protection was originally an English creation. It was primarily confined to the regulation and control of the output of printers in Europe. Prior to such control, printing presses were free to make multiple exact copies of a particular work. This lead to the rapid and widespread dissemination of ideas and information throughout Europe, regardless whether such information are pro-government or anti-government. Both the Church and governments encouraged and tolerated the practice. As an inevitable consequence, governments recognized the need of establishing control by requiring them (printers) to secure official licenses to be able to produce books. Such licenses provided the printers the exclusive right to print particular works for a fixed period and at the same time to prevent others from printing the same work during such period. (http://en.wikipedia.org/wiki/History of copyright).

Modern copyright law owes its origin to the Statute of Anne. This statute provided for exclusive rights to authors for the protection of their work. However, this protection was limited to a specific number of years, after which the work shall pass to public domain.

Protection was confined only to a particular country’s territory. Much later, copyright protection, through the Berne Convention, was extended beyond a country’s territory. According to the convention, signatories to it were required to treat foreign copyrights as that of their own.

The Berne Convention enumerated the scope of copyright protection. “Copyright has grown from a legal concept regulating, among others, the rights in the publication of books, the making sound recordings, films, photographs, software, and architectural works” (http://en.wikipedia.org/wiki/History of copyright).

To this day, the provisions of the Berne Convention are still applicable.

As of the present, copyright protection covers published and unpublished literary, scholarly, scientific and artistic works, irrespective of their mode or form of expression, as well as of their content, quality and purpose. Further, such works are protected from their moment of creation.

Various laws relating to the protection of copyrights have been enacted throughout the world. These include, among others, the Universal Copyright Convention of 1952; the International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organisations of 1961 (often referred to as Rome Convention); the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) of 1994; the WIPO Copyright Treaty of 1996 (WCT); and the WIPO Performances and Phonograms Treaty of 1996 (WPPT).

In the Philippines, the Intellectual Property Code governs the protection of copyrights. It was enacted in 1997. However, copyright protection was already availing even prior to said law’s enactment, through the provisions of the Civil Code regarding intellectual creations and Presidential Decrees Nos. 49 and 285 (http://en.wikipedia.org/wiki/Intellectual property protection in the Philippines).

With the advent of the internet, copyright infringement was on an all-time high. One significant law to combat infringement which was passed in the United States was the Digital Millennium Copyright Act (DMCA). Said law criminalized the circumvention of digital restrictions (digital rights management or DRM) encrypted on DVDs and on digital downloads regardless whether actual copyright infringement is committed These restrictions or DRM technologies attempt to control use of digital media by preventing access, copying or conversion to other formats by end users. It is commonly used in the film and in the music industry (http://en.wikipedia.org/wiki/Digital Millennium Copyright Act).

In the Philippines, however, there is no specific provision yet on DRM technologies in its Intellectual Property Code.

Prior to the age of the internet, copyright infringement was basically done manually. With respect to a book or any other printed copyrighted article, infringement was committed by way of the ubiquitous photocopying machine. With respect to music, infringement was made by way of a tape recorder or in much later times, a CD burner.

Now, however, photocopying, or reproduction by reprographic means and so is CD burning/ripping, are relatively outdated.

With digitization, or the conversion of an analog format to a digital format, it was relatively easy to reproduce without limits or to convey to the public any copyrighted item.

Any material can be converted into a digital format. It includes, among others, letters, manuscripts, books, photographs, maps, audio recordings, microforms, motion pictures etc. Likewise, three-dimensional objects can also be digitized. The very goal of digitization is to improve access to the materials. Because of its accessibility, most digitized materials become searchable via databases on the internet (http://hurstassociates.blogspot.com/2007/12/digitization-definition.html).

As a consequence, the internet made copying easier and on a massively global scale.

CHALLENGED PROVISIONS

Hereunder are some of the provisions that have been challenged or are in conflict with current technologies, particularly by the Internet and the Mass Media.

177.1 Reproduction of the work or substantial portion of the work; 

177.2 Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work; 

177.3 The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; 

177.4 Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n) 

177.5 Public display of the original or a copy of the work; 

177.6 Public performance of the work; and 

177.7 Other communication to the public of the work (Sec. 5, P.D. No. 49a) (http://www.ipophil.gov.ph/IPCode/CopyrightsCh5.htm)

The above-cited provisions are the economic rights granted to an owner or a creator of a particular work protected under copyright laws. They are recognized worldwide and generally cover all relevant commercial activities. These activities include, among others, the physical reproduction of books, the staging of plays, the reproduction and / or the transformation of music and / or the playing of such music to the public, and the release of these works to the Internet. (http://portal.unesco.org/culture/en/files/30671/11443368003faq en.pdf/faq en.pdf)

In the case of a reproduction of a work, the technology which made possible the conversion of music into a format known as mp3, or a film into an avi or mpeg format has freed both music and film from being confined to a physical object. As a result, it is now possible to share it and communicate the same to the public.

On the side of the general consuming public, such innovation was very much welcome. Music was no longer inaccessible and expensive. Music, films, and basically any information, became widely available.

On the other hand, the affected industries countered by pushing for tougher laws and the employment of a technology which would combat and/or minimize copyright infringement. Such technology is known as Digital Rights Management (DRM), and which is used by companies such as Sony, Apple Inc., Microsoft, AOL and the BBC.

However, its use is somewhat controversial. “Proponents argue it is needed by copyright holders to prevent unauthorized duplication of their work, either to maintain artistic integrity or to ensure continued revenue streams. Some opponents, such as the Free Software Foundation, maintain that the use of the word “rights” is misleading and suggest that people instead use the term digital restrictions management. Their position is essentially that copyright holders are restricting the use of material in ways that are beyond the scope of existing copyright laws, and should not be covered by future laws. The Electronic Frontier Foundation, and other opponents, also consider DRM systems to be anti-competitive practices” (http://en.wikipedia.org/wiki/Digital_rights_management).

As it is, DRM technology restricts users’ access to movies, music, literature and software, indeed all forms of digital data. DRM technology is “simply a prison in which users can be put to deprive them of the rights that the law would otherwise allow them” Copyright skeptics in the academe and “public-interest groups” argue that copyright law is being abused by the big names in the industry to stifle technological innovation and quash artistic freedom (http://www.defectivebydesign.org/what_is_drm).

Another set of rights granted to a copyright owner which likewise impinges with current technology is that which is specified under Sec. 193 of the Intellectual Property Law, to wit:

SEC. 193. Scope of Moral Rights

The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right: 

193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work; 

193.2. To make any alterations of his work prior to, or to withhold it from publication; 

193.3. To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and 

193.4. To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work (Sec. 34, P.D. No. 49). 

These rights, which are non-pecuniary by nature, refers to an author’s or a creator’s right to decide whether his work should be made public, to claim authorship and attribution for his work, and to object to any use that can be considered as prejudicial to his honor and reputation with respect to his work. These prerogatives are referred to as the author/creator’s moral rights’. (http://portal.unesco.org/culture/en/files/30671/11443368003faq en.pdf/faq en.pdf)

The provisions cited above, which are really prerogatives pertaining to an author or a creator, have been rendered insubstantial in meeting the demands of copyright protection with the advancement of technology.

The digitalization of any data format, be it music, video, photograph and other media format became widespread and became an inevitable reality. Coupled with advances made in file compression technologies, copyrighted works were easily and perfectly reproduced and then shared via the Internet. The ever-widening availability of broadband and continual advances in P2P technology has made file sharing easier, faster and more prevalent, with increasing download speeds making the distribution of movies, TV series, albums and other copyright works increasingly popular (http://www.scribd.com/doc/19097034/Who Owns What Why the Internet Means Our Copyright Laws Need Reform).

With the upshot of digitalization and file-transfer technology and peer-to-peer transactions, copyright infringement became clearly inevitable. These technologies radically undermined the efficacy of existing copyright laws. Thus, arose a greater need for protecting copyrights. The facility and ease upon which any copyrighted article may be accessed has required a more pro-active approach in protecting copyrights and to a greater extent intellectual property rights.

“While copyright owners have aggressively pursued litigation in an attempt to prevent the unauthorised distribution of their intellectual property via the Internet, they have had limited success. The Internet has meant it is no longer feasible to control distribution, yet copyright law is premised on enabling exclusive distribution privileges. Copyright enforcement was more effective when there were a finite number of publishers, but the Internet has brought about a paradigm shift whereby every consumer can also be a creator and distributor of digital media. In this context attempts at enforcement are like shooting fish, unlucky for the fish that get shot, but the fish population remains unaffected. Copyright holders’ attempts to police the duplication of binary digits in the digital domain has become increasingly nonsensical and had little effect” (http://www.scribd.com/doc/19097034/Who Owns What Why the Internet Means Our Copyright Laws Need Reform).

There are acts, however, which are exempted from copyright infringement, such as, among others, private copying, the making of quotations from a published work as long as such quotations comply with fair use, the reproduction or communication to the public by mass media of articles on current political, social, economic, scientific, or religious topic, lectures, addresses and other works of the same nature, which are delivered in public and where such use is informative and not expressly reserved.

According to some, “the present system of copyright limitations present users of copyrighted works with a bewildering array of detailed rules and regulations, most of which were written in a pre-electronic era… The inflexibility of current platform specific limitations combined with the expanding right of reproduction threatens to upset the traditional balance between copyright protection and user freedoms. Right owners, on the other hand, argue that many of the existing limitations should not be preserved in the new environment. Existing statutory licenses for photocopying, home taping and other mass private reproduction, do not reflect a fundamental `freedom to copy’. These statutory licenses have been introduced for merely practical reasons; no individual licensing of mass private reproduction was considered feasible. ”(Adapting Copyright to the Information Superhighway:www.ivir.nl/publications/hugenholtz/PBH2.doc)

In sum, digital technology, data compression, and file transfer technology, are the technologies which have far-reaching implications upon copyright law, particularly because of the following:

a) Ease of Reproduction.
b) Ease of Dissemination
c) Ease of Storage

CHALLENGES ON THE EXISTING COPYRIGHT LAW

Whether the existing framework is adequate to adapt to the new technologies, the consensus in the international community is that it does, and that the system needs minor revisions rather than a major overhaul. Under the WIPO Copyright Treaty (WCT), countries must put effective legal remedies in place against the circumvention of technological measures that owners use to safeguard their rights. Countries must also provide legal remedies against persons who delete or alter rights management information attached by the copyright owner to the work. (http://www.america.gov/st/econ-english/2008/April/20080429222342myleen7.736933e-02.html)

While the framework of existing property rights continues to be appropriate, the meaningful exercise of these rights in the context of new uses, such as those on the Internet, requires supplementing them with legal rules that prohibit the compromise of their technology.

Against the backdrop of massive, large-scale infringement wherein it is difficult for copyright owners to identify, locate, and bring enforcement actions against the vast number of individuals who might be infringing their works, the doctrine of secondary liability comes into play. The said doctrine holds the facilitators of these networks liable for the infringement. They provide an effective means of enforcement by placing liability on those who are benefiting from the infringement and are in a position to control or restrain it. These doctrines may play a much more important role in copyright in the future, as more and more technological developments permit companies to take advantage of individuals’ infringing activity. (http://www.america.gov/st/econ-english/2008/April/20080429222342myleen7.736933e-02.html)

In the Philippines, Section 30 of the R.A. 8792, otherwise known as the Electronic Commerce Act, provides for the liability of a service provider. It states:

No person or party shall be subject to any civil or criminal liability in respect of electronic data message or electronic data message or electronic data message or electronic document for which the person or party acting as a service provider merely provide access if such ability is founded on –

a. obligations and liabilities of parties under electronic data message or electronics documents;

b. making publication, dissemination or distribution of such material or any statement made in such material, including possible infringement of any right subsisting in or in relation to such material. Provided that, the Service Provider does not:

i. have an actual knowledge, or is not aware of facts or circumstances from which it is apparent that making publication, dissemination or distribution of such material is unlawful or infringes any rights subsisting in or in relation to such material;

ii. knowingly receive a financial benefit directly attributable to unlawful or infringing activity; and

iii. directly commit infringement or other unlawful act and does not include or cause another person or party to commit any infringement or other unlawful act and or does not benefit financially, from infringing activity or unlawful act of another person or party.

CONCLUSION

The primary objective of copyright is not to reward the labor of authors, but to promote the progress of science and the arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. (http://www.scribd.com/doc/22912633/The-Law-on-Copyright)

Copyright law involves a balance between the rights of both creators and users. With a fast-evolving digital technology in which the traditional modes of copyright protection have been rendered as seemingly symbolic, the law must perform a balancing act in which neither party is at a disadvantage.

The challenge to copyright law is how to keep pace with a constantly evolving digital world. Technology changes quickly. And it does. Innovations augur well for the creative industries. On the other hand, it creates a myriad of social and legal barriers to the effective use and protection of their outputs / creations.

The way in which new technology can reproduce, disseminate, and store digital information, including copyrighted works, is a double-edged sword to copyright holders. On the one hand, it provides creators inexpensive ways of communicating and disseminating their work. On the other hand, these new technologies also are the new modes for infringing their works.

With these technologies, a thought comes to mind whether the copyright laws are still sufficient to meet the exigencies of the times. Some sectors clamor for reform. Others, however, seek for the status quo. That is, copyright protection should be worked within the existing framework.

The protection of copyright within the current realm of technology is indeed notably being challenged with today’s technology.

Whether the government shall succumb in creating more rights for creators and imposing greater penalties for infringers is only a matter of time. It is inevitable that a reformed copyright law needs to be done. However, it should not work against the free dissemination of ideas and information. Rather, it should both work for the flowering of both creativity and the protection of such creations and at the same time the free exchange of the ideas and information. Likewise, as an added caveat, it should not unduly interfere in one’s private activity in the virtual world.

Perhaps one may learn a thing or two from Lawrence Lessig. His proposal for the solution on the impact of technology on copyright and creativity calls for a deregulation of amateur creativity, mandatory copyright registration, simplification of the copyright code, decriminalization of the non-commercial copy, and monetization peer-to-peer file sharing (http://www.giarts.org/article/impact-technology-copyright-and-creativity).

It is somewhat simple and straightforward but we have to start somewhere.

Technology is not the enemy. It is rather an opportunity for one to be innovative in protecting one’s rights.


REFERENCES

  1. http://en.wikipedia.org/wiki/History of copyright
  2. http://en.wikipedia.org/wiki/Intellectual property protection in the Philippines.
  3. http://en.wikipedia.org/wiki/Digital Millennium Copyright Act
  4. http://hurstassociates.blogspot.com/2007/12/digitization-definition.html
  5. http://www.ipophil.gov.ph/IPCode/CopyrightsCh5.html
  6. http://portal.unesco.org/culture/en/files/30671/11443368003faq en.pdf/faq en.pdf
  7. http://en.wikipedia.org/wiki/Digital_rights_management
  8. http://www.defectivebydesign.org/what_is_drm
  9. http://www.scribd.com/doc/19097034/Who Owns What Why the Internet Means Our Copyright Laws Need Reform
  10. Adapting Copyright to the Information Superhighway:www.ivir.nl/publications/hugenholtz/PBH2.doc
  11. http://www.america.gov/st/econ-english/2008/April/20080429222342myleen7.736933e-02.html
  12. http://www.scribd.com/doc/22912633/The-Law-on-Copyright
  13. http://www.giarts.org/article/impact-technology-copyright-and-creativity
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