NET EFFECT COPYRIGHT CONUNDRUM IN CYBERSPACE
| Citation | (1997) 9 SAcLJ 229 |
| Author | TAN TEE JIM |
| Published date | 01 December 1997 |
| Date | 01 December 1997 |
The Internet has in recent years generated a global surge of excitement and interest that is positively phenomenal. It portends the future, promising to revolutionise communications, create a global electronic marketplace and open up business opportunities. Estimates vary as to the number of people already connected to the Net. But it is widely believed that the number is over 60 million, and growing exponentially. Between 750,000 and 1 million people are caught up in the Internet phenomenon every month, and it is expected that by the end of the century, the total number of users will be at least 150 million and the value of goods, services and information traded globally over the Internet will reach US$200 billion.1
This Internet phenomenon has in turn created an immense conundrum in copyright circles. The problem, starkly stated, if difficult to resolve, is this: if copyright works can easily and speedily be copied, revised, distributed, transmitted or otherwise manipulated in cyberspace2, can copyright still perform its legal, social and ethical functions of serving and balancing the interests of its various stakeholders? Can it meet a profoundly new kind of challenge posed by the galloping convergence of computer and telecommunications technologies? Indeed, should we leave it to self-destruct in the face of the onslaught and replace a moribund system with a new legal edifice?3
The source of the problem is equally stark: the Internet transcends the physical dimension where copyright is rooted. It lends credence to the notion that all things physical are inherently nebulous and mutant, detachable from their contents. Thanks to the Internet, data and information can now be conveyed to us in a “digitised” form4, rather than “hard” copies (e.g. books). Sounds and images can reach us through signals down telecommunications networks, rather than via fixed, tangible media (e.g. cassettes and CDs). Works of art need not be resident on canvas for display in distant museums, but can be stored in undifferentiated electronic impulses and, with a few keystrokes, made instantaneously available. In short, the contents can indeed be detached from the physical medium.
The consequence is that notions of property and exclusivity will become irrelevant. Ideas and expressions of ideas will become increasingly less susceptible of exclusive possession, exclusive appropriation, exclusive property and any other form of exclusivity. As soon as they are released into cyberspace, they become publici juris. They can be retrieved and used by anyone and everyone5 in any part of the world. Moreover, they can be revised, modified, expanded and re-released by anyone and everyone, without detection and without authorisation. This is exacerbated by the fact that there is no all-embracing hierarchy, no central establishment and no grand, overarching authority to impose standards and control the use of the Internet, with the result that there is a prevalent attitude that anything goes on the Internet. This attitude may represent nirvana to researchers, scholars, students and other users but to authors, artists, creators and owners6, it constitutes a grotesque intrusion into their domain where, in the past, copyright has played the role of the arbiter. Can copyright continue to perform this role in cyberspace?
The reality, virtually speaking, is that since Gutenberg, notions of property and exclusivity have been the conceptual tools guiding copyright law. Historically, that law grew out of attempts by the English Crown and stationers’ guild to control information and unlicensed printing of books. Since then, the law has developed to deal with other forms of physical things (such as photographs, sculptures, films, sound recordings, TV broadcasts, cable programmes and computer programs). In this milieu, it was not unnatural to allow for proprietary assertions to be made. Theorists
have identified moral and economic justifications for these assertions.7 Morally, a person has a natural right to the product of his brain; as one sows, so should one reap. Further, society is obliged to grant economic rewards to such persons to the extent that they have produced something useful for it. Hence, one could, for instance, claim ownership of a precise turn of phrase imprinted in a novel to convey a particular idea or of an impressionistic view of nature drawn on paper or even of the order in which football results are presented in a national newspaper. Such has been the case with the great literary and artistic works of the different ages. In the event, a coherent exclusivity-based system of rights and privileges (namely, copyright) arose to protect the exclusive and proprietary rights of authors.
The nebulosity and global reach of cyberspace pose a number of other provocative legal challenges to such a system. As indicated, the traditional concern of copyright law has been with creative works in their physical, material form. In this form, it has generally not been difficult for authors to control over most, if not all, activities of conceivable commercial value, including the copying, dissemination and distribution of their works. Such activities usually require the use of substantial physical resources, facilities as well as manpower. Detection is therefore often not difficult. Illegal physical copies of the works can be searched and seized in ports and warehouses pursuant to search warrants and other appropriate court orders provided by most national laws. In contrast, transmissions over the Internet are well-nigh uncontrollable. Copyright works can easily be transmitted through computers over the Internet directly to users at their offices and homes at the cost of a telephone line, and the transmissions do not have to result in the use of the works in paper form or any other material form. These not only impede detection but are also likely to render futile any attempt at search and seizure.
Further, copyright law is inherently territorial. The nature and extent of copyright protection granted to a work in a country depends on the law of that country. Although there is a degree of harmonisation and discipline around the world imposed by international copyright conventions (such as the Berne Convention and TRIPS), the ground rules for granting copyright protection do vary from country to country and there are still widely varying standards in the protection and enforcement of copyright. In the Internet context, this is particularly perplexing for the author. This is because Internet transmissions invariably straddle national boundaries.
A copyright work transmitted over the Internet to recipient computers often passes through intermediate computers in many different countries. Each of the recipient computers would be able to retrieve or “download” the work for its user. The user would in turn be able to proceed to transmit or “upload” the work to other computers for friends, colleagues and users in other countries. In these circumstances, enforcement of copyright by the author is likely to be both difficult and expensive.
The several concerns and issues generated by the Internet have led to high-level reactions. For instance, the Australian Copyright Convergence Group in August 1994 published its report entitled “Highways to Change — Copyright in the New Communications Environment” whilst the Information Highway Advisory Council of Canada published theirs in March 1995 on “Copyright and the Information Highway”.8 In July 1995, the European Commission published a Green Paper entitled “Copyright and Related Rights in the Information Society”. In it, the Commission opines that the full development of the information society in Europe, including the information superhighway, will require the harmonisation of laws (including intellectual property) to ensure that right holders will make material available while balancing the interests of users. In September 1995, the United States issued the definitive report of the Information Infrastructure Task Force entitled “Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights” (“Task Force Report”).9 As a result of the issues raised and the recommendations made in these reports, changes to the various copyright treaties and legislation are in the offing. Indeed, at a Diplomatic Conference in Geneva in December 1996, several member states of WIPO (World Intellectual Property Organisation) agreed to update two international copyright treaties10 to bring them into the Internet era.
In the meantime, the first crop of Internet court cases (mostly from the United States) has been making pioneering waves to extend the potency of the law into uncharted territory. What follows is a review of the current legal trends concerning the Internet and their likely impact on Singapore’s copyright regime.
Article 2 of the Berne Convention (which is currently adhered to by almost 100 countries) defines “literary and artistic works” to include every work in the literary, scientific and artistic domain “whatever may be the mode or form of its expression”. Such works include the following:
“…books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature;…works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.”
These works are also protected under several national copyright laws. For instance, the United States, birthplace of the Internet, provides copyright protection to “works of authorship fixed in any tangible medium of expression, now known or later developed, from...
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