Intellectual Property. The Challenge of Copyright Law

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Introduction

A lot of international research work indicates that the contribution of copyright industries to economies of different countries is increasing, while at the same time becoming important (Canadian Heritage 2004). Copyright-Based (CB) industries have received numerous definitions such as that given by the World Intellectual Property Organization (WIPO) which defines CB industries as “those industries engaged in the creation, production and manufacturing, performance, broadcast, communication, and exhibition, or distribution and sales of work and other protected subject matter” (Canadian Heritage 2004, p.5). At the same time, the definition of WIPO put into consideration the fact that the economic impact of CB industries can be categorized into two: one related to core CB industries which constitute industries involved in the production of goods copyright protected; and non-core CB industries which largely involves industries that are inter-related to core CB industries (Canadian Heritage 2004).

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The Law of intellectual property has come to define, in essence, what can be purchased and sold on media and the entire technology markets with regard to copyrights works, trademarks, and inventions (Nayyer, n.d). Observation is that for the last about two centuries, copyright law has essentially acted in the interest of promoting and fostering broad public access to numerous kinds of information works. However, the problem has arisen largely from the fact that with increasing technology of digital information, individuals have increased their ability to copy, produce, and distribute information both legally and illegally a situation that has prompted enactment and facilitation of intellectual copyright laws to guide individual behaviors. Therefore, the challenge of copyright law about intellectual property is an issue that stakeholders have tried to address using numerous legal strategies that have largely centered on legal, educational, public relations, technology, and the development of new business models strategies. Therefore, this research paper will investigate how each of the above strategies has been pursued and implemented.

Intellectual property in the digital age

Today, piracy of intellectual property especially copyrights is an issue that is drawing a lot of attention and concern as it skyrockets all over the world. Observation is that, with the increasing digitization of the world, and the internet becoming a key ingredient in the lives of people, traditional methods of enforcing have become ineffective in protecting IP since technology is in a state of expanding creating new problems for IP. This problem has further been heightened by the shifting of technology from analog to digital, which in its capacity has presented additional difficulties enforcing the spread of IP that in turn has created room for many people to violate the rights of IP owners. However, the question is how has the protection of intellectual rights been spearheaded and what various strategies have been used.

In the United States of America, the first intellectual property laws provided creators with opportunity by offering them temporal monopolies over their creations. With regard to methods of protecting these creations, they are categorized into three groups: patents, trademarks, and copyrights. Patent laws have been used to provide protection to ideas, design, or any new product meeting requirements of the novel, useful, and non-obvious (McIntosh, Schaefer and Gould n.d). According to this patent law, the creator of the idea or product gets a protection term of 20 years and after the expiry of this period, anyone can duplicate the invention (McIntosh, Schaefer and Gould n.d). On the other hand, a trademark grants the owners of trademarks exclusive use, and the law provides the possibility for the owners of trademarks to renew for it forever. Copyright law provides protection to books and mechanical designs, but it has further evolved to involve and include musical recordings, architectural designs, software code, and other works that could be reproduced or communicated (McIntosh, Schaefer and Gould, n.d).

Recently, there has been the establishment of the ‘No Electronic Theft Act’ of 1997 and the Digital Millennium Copyright Act of 1998 (The UCLA Online Institute for Cyberspace Law and Policy, n.d). The ‘No Electronic Act’ was largely put in place to protect criminal infringement of copyrights, also the Act was put in place to provide copyright protection with regard to unauthorized fixation and trafficking of live musical performances and those found violating the requirements of the Act are legally punishable. With regard to the Digital Millennium Copyright Act of 1998, the Act criminalizes actions of circumventing anti-piracy measures that are established in commercial software; the Act further makes it criminal to produce, sale or dispose of, distribute of largely code-cracking items that in most cases are used illegally to duplicate software (The UCLA Online Institute for Cyberspace Law and Policy n.d). The Act in general puts a legal limit on the internet service providers from any action, tendencies, or intentions to engage in copyright infringement, such as transmitting information through the internet (The UCLA Online Institute for Cyberspace Law and Policy, n.d).

The Digital Millennium Copyright Act of 1998 has faced numerous challenges especially with regard to Napster’s case. Napster is an online music shop that started operations in 1998 where it provides online users with free opportunities to search and download their preferred music to their computers or other devices (Murphy, 2000). The online shop allows its clients and other users to swap songs by the use of MP3, hence making the online-music shop popular. The online shop was sued by Metallica band, which claimed that the online shop had facilitated the downloading of its music illegally by more than 300,000 clients of Napset (Murphy 2000). According to Metallica band owner and leader, Dr. Dre Napster was purely engaged in, “insidious and ongoing thievery scheme” (Murphy 2000, p.1). But the company countered the claims by observing and instating that it was protected by the ‘safe harbor’ clause of the Digital Millennium Copyright Act of 1998 which provides legal protection to internet service providers from meeting any legal liability or compensation if copyright laws are disregarded by their users (Murphy 2000). But in ruling the case in May 2010, San Francisco District Court found Napster to be liable for infringing copyrights laws, and in the statement of the judge, “Napster was more than just a conduit for MP3 files and therefore was not protected by the safe harbor provision” (Murphy, 2000, p.1).

Education strategies

Today, addressing the intellectual property rights violation through mere laws without other backups has not been effective. The overall conviction is that the importance of intellectual property education cannot be ignored as a way of enlightening people about copyrights laws and what they should do (Anonymous, n.d). The proponents of education as a strategy to respond to issues to do with violation of intellectual property rights claim that the rate or percentage of those infringing the intellectual property rights is on the rise especially by students, scholars, and the larger population (Anonymous n.d). The observation made here is that technology, especially the internet, is reducing the costs people have to part with in obtaining original materials, and what is being experienced today is the widespread infringement of intellectual property rights as more people engage in copying, duplication, and retrieval of electronic materials in an illegal way (Anonymous, n.d).

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As laws that are more restrictive have been put in place, the overall effect of such laws is still minimal to protect the copyright industry since the majority of the public seems to have little understanding or sympathy with regard to copyrights requirements. As a result, many members of the copyright industry have come to identify education as the key strategy to curbing numerous violations of copyrights laws. For instance, their general observation is that “digital technology means that all citizens must learn to understand and respect copyright as it stands and since the rules of copyright often run contrary to users’ self-interest, a great deal of education may be required to prevent violation of these laws” (Anonymous, n.d).

The general observation is that, in the USA, intellectual property education has been an aspect many have advocated for starting in 1995 by USPTO leader Bruce Lehman who, after heading the Working Group on Intellectual Property Rights that was commission by Information Infrastructure Task Force, noted that, “children must learn to just say yes to licensing” (Anonymous n.d). Since these initial calls for intellectual property education, heightened efforts have increased to encourage schools, have programs to teach and educate schoolchildren on the importance of IP rights (Lakhan 2002). Since 2003, there have been two major developments in an effort to bring education as the main strategy to address the IP rights problem where a bill was introduced in the House of Representatives by Howard Berman. The bill by the name Piracy Deterrence and Education Act of 2003 postulates that there is a need for warning, enlightening, and fostering of intellectual property rights through aggressive education campaigns and awareness strategies among the population (McKinney 2003).

Lakhan (2002) on his part observes that students have become the major victims of violating copyright laws, and when they do so, they do not recognize it since they assume their actions are a victimless crime. When left to have such a notion, they tend to carry it throughout their lives and it is important they receive proper education on matters to do with copyrights laws and rules (Lakhan 2002). The author further proposes an Intellectual Property Education program which, to him, should be designed in such a way that it has the ability and capacity to: focus on the legal aspects and critical points that affect copyright laws. Such critical points should pay attention to the history and tenure of copyright, the constitutional prose that delegates powers to the Congress for intellectual property law, the historic and current protection of intellectual property owners in the international sphere, and the legal consequences accompanying violation of copyright rules (Lakhan 2002). The author summarizes by saying that it is through such an education framework population, especially the young one, will be able to learn about ethics, piracy, infringement, plagiarism, trusted systems, and violation and after a thorough knowledge of these aspects, they will be able to respect creation and invention that belongs to them or other people (Lakhan, 2002).

Public relation strategies

Public relations strategies that have been used to address or protect copyright rights have dwelt on providing general information and education to the concerned population. Pursuing these strategies has been fostered and spearheaded through online shops and websites being required to disseminate specialized information appropriately and directed to musicians, programmers, and even screenwriters. Further, public relations strategies have centered on providing general copyright information with intention of educating scholars, students, web surfers, re-mixers, and the general population of people. More so, online websites have created online pages where their users can read copyright rules and requirements. Furthermore, online shops and companies have embraced the use of secret codes, which make it impossible to download some materials. In general, the majority of public relations strategies have been designed on the precept of creating a friendly awareness among online shops and companies with their clients and potential clients with regard to copyright rules and requirements.

Technological strategies

Numerous technological strategies have been put in place that aims to reduce or address the issue of copyrights violation. One such company that has come out to carry out copyright protection is Google, which, in its capacity as the largest global online company, has put in place mechanisms to experiment on the viability to make legal preview content to be more easily available and viewed in many online research results (The Internet Database, 2010). The company has initiated a technological ‘look at ways’ index to the sites that make it legal for materials in those sites and accessing the materials has to be legalized. At the same time, Google has accepted to alter its auto-complete settings to reduce chances of piracy, and further the company has agreed to “act on reliable copyright takedown requests within 24 hours with even faster action for those rights holders that submit requests responsibly” (The Internet Database 2010, p.1). Further, there has been the creation of BitStalker which is a joint project designed by Time Warner Cable and Comcast (Bode 2010).

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According to the ability of this technology, it provides help to the copyright holders to efficiently recognize BitTorrent users trading in copyrighted files. According to the inventors of this technology, “the goal is to reduce the number of false positives that pop up about 11 percent currently during efforts to identify pirates on P2P networks” (Bode 2010, p.1). Further, commenting on the effectiveness of this technology founder member as expressed by Karl Bode observed, “we develop an active probing framework called BitStalker that identifies active peers and collects concrete forensic evidence that they were involved in sharing a particular file. We evaluate the effectiveness of this approach through a measurement study with real, large torrents consisting of over 186,000 peers and we find that the current investigative methods produce at least 11 percent false positives, while we show that false positives are rare with our active approach” (Bode 2010, p.1). The suitability of the technology has been found to possess the potential to carry out monitoring of about 20,000 numerous peer users over a time frame of five minutes by only using about 14.4 to 50.8 kilobytes of bandwidth (Bode 2010).

The development of new business models

Broadband connectivity is becoming widespread on the global front, which is resulting in sharing of files and distribution mechanisms such as BitTorrent and YouTube, which in their capacities are creating new challenges and opportunities for the copyright industry (Alikhan and Mashelkar, 2009). To respond, copyright industries are on increasing note adopting numerous measures including stepped-up anti-piracy activities that their major intention is to identify and pursue high-volume infringers and development of new business models for online content delivery using digital rights management (DRM) technologies (Alikhan and Mashelkar, 2009). One new business model that is gaining popularity and acceptance is the concept of open-source software which is an idea that originated in 2000. The concept enables easy personal and business computing applications as well as for research and development (R&D).

The open-source software is normally distributed with its source code in an accessible form. According to this new business model, programmers are presented with the opportunity to read, redistribute and modify the source code for a piece of software and evolve through continued modification and adaptation. All key participating programmers accept a license formula, which allows subsequent programmers to adapt and build on their works (Alikhan and Mashelkar 2009). Other new business models have included the merger of major online shops for instance between AOL and Time Warner wherein in 2001, AOL-Time Warner entered into collaboration with BMG, EMI, and Real Networks. Together, they launched an online distribution site that was christened MusicNet, which, in more sense, was in line with copyrights laws and cases of piracy were eliminated (Macmillan, 2007).

Conclusion

The consensus is that technological advancement is making it difficult to implement copyright law and the increasing trend is that copyright protection as an individual property is declining and more emphasis is on copyright protection based on collective. Technology advancement thus shows that it is becoming more difficult to police copyright work and thus the increase in infringement or violation of the copyright laws. The idea of effective copyright protection in the age of digitization is becoming challenging, a situation calling for modification of laws and regulations governing and guiding the copyright laws. With digitization taking place every day it is inevitable to avoid violation of copyright laws and what is important is for the key stakeholders to come together and formulate or invent a workable model that incorporates legal, economic, political, and social requirements of the users and such a model will be important and effective in managing online copyright infringement.

Reference List

Alikhan, S. R. and Mashelkar, R. A., 2009. Intellectual property and competitive strategies in the 21st century. Netherlands: Kluwer Law International. Web.

Anonymous. N.d. Intellectual Property Education. Web.

Bode, K., 2010. Researchers aim to reduce Copyright Infringement false positives. Web.

Canadian Heritage. 2004. The Economic Contribution of Copyright-Based Industries in Canada. Wall Communications Inc. Web.

Lakhan, S. E., 2002. Stop Piracy with Edification: Intellectual Property Education in School. Web.

Macmillan, F., 2007. New directions in copyright law. London: Edward Elgar Publishing.Web.

McIntosh, D., Schaefer, S. and Gould, C., N.d. Intellectual Property in a Digital Age. Web.

McKinney, L., 2003. New Antipiracy Laws Proposed. Web.

Murphy, J., 2010. Are You Violating Copyright Laws when you use Napster? Web.

Nayyer, K., N.d. Globalization of Information: Intellectual Property Law Implications. Web.

The Internet Database. 2010. Google outlines big pledges to reduce copyright infringement. Web.

The UCLA Online Institute for Cyberspace Law and Policy. N.d. Digital Millennium Copyright Act. Web.

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