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Multimedia Law
@ Out of the box
Jun 10 2005, 02:25 (UTC+0) | m4tt writes: This article was written for a law module whilst I attended university. I have submitted to Neworder in the light of increasing changes for computer innovation, the changes in Patent Law and Copyright. It also has a relation to Teddy's article on the Patriot Act. I hope you enjoy reading this article and please remember this is not fact just one mans humble opinion.
Critically consider the extent to which the law in relation to IP rights adequately protects the interests of Multimedia and Audiovisual professionals.
Introduction
Property by definition of law is what is capable of being owned. In the modern era, energy isn't expelled creating new products; it is used in the creation of new concepts and initiatives. Intellectual property encompasses this idea and creates a set of regulations that allow the protection of ideas and concepts so that the creator of the work has exclusive rights to the material produced. Examples of these kinds of intellectual property are copyrights, patents, trademarks and design rights (the latter two being more of a commercial endeavour).
Copyright is an automatic protection over creative work published by an author, meaning that no registration is required to protect such work. It involves the exclusive right to make copies of the work, allows the distribution of copies to the public, to perform or broadcast the work or adapt the work. Patents are a time-limited monopoly granted to inventors which gives them the exclusive right to produce or authorise others to produce the patented item. Trademarks are a formal way in which a brand owner can develop and protect his brand image.
Regulations have become harder to enforce and police, resulting in an increase of copyright infringement and loss of potential earnings. This report aims to show how existing laws protect copyright owners and what steps these professionals must take in order to restrict the misuse of their property. I will also explain the rise of piracy and how it has changed the way that multimedia professionals are affected.
Acquiring Copyright
Copyright laws cover creative content. Such work includes:
"(a) original literary, dramatic, musical or artistic works;
(b) sound recordings, films, broadcasts or cable programmes:
(c) the typographical arrangement of published editions."¯ [Copyright Designs and Patents Act 1988, s 1.]
The Copyright Designs and Patents Act 1988 currently protect literature, art, web sites, music, sound recordings, films and broadcasts. Audiovisual professionals work with both their own content and content created by other authors, so they must be fully aware of the copyright laws that are bound to these works.
Copyright protection (as stated above) arises automatically when an "original"¯ work is "fixed"¯ in a tangible medium of demonstration. When a work is original it owes its origin to the author and was not copied from some pre-existing work. If a work is "fixed"¯ when it is created, it allows for the work to be perceived, reproduced and otherwise communicated for a period of more than transitory duration. An example of fixation can be a computer database: "Fixation and registration: This discusses the problem that a database is never "published" as a whole, but has continuous amendments and additions. It seems that copyright in the complete database is continuously being updated."¯ (1)
Range Of Protection Copyright is more of a physical protection as it protects against copying the articulation as opposed to the idea of the work. The articulation of a work is not limited to the exact copy of the work, if a work deemed "substantially similar"¯ can infringe copyright. Although not directly involved with the multimedia market, a case involving perfume was subject to copyright infringement based on being "substantially similar"¯. The case of LancĆ´me Parfums et BeautĆ© et cie S.N.C. v. Kecofa B.V. found that Dutch law could hold perfume compositions as copyrightable. The court concluded:
"Considering that the scent itself is too fleeting and variable and dependent on the environment it cannot be protected by copyright laws."¯ The Court nevertheless held "that the material that gives off the scent can be perceived through the senses and is sufficiently concrete and stable to be considered a 'work' under the Copyright Act of 1912."¯ (2)
It was found that 26 fragrant ingredients of the hundreds used in modern perfume were original and therefore copyrighted to LancĆ´me. Under Dutch law, a computer program and its prepatory material are also bound by copyright; therefore audiovisual developers may in part be covered by the same statutes used in the Copyright Act of 1912.
The owner of the copyright has exclusive right to do the following in the United Kingdom:
(a) To copy the work.
(b) To issue copies of the work to the public.
(ba) To rent or lend the work to the public.
(c) To perform, show or play the work in public.
(d) To communicate the work to the public.
(e) To make an adaptation of the work or do any of the above in relation to an adaptation.
Anyone who violates any of the exclusive rights of a copyright owner is an infringer. If rights are infringed then a copyright owner in some cases can recover statutory damages from an infringer. Courts have the power to issue injunctions to prevent or impede copyright infringement and can order the seizure or destruction of infringing copies as stated in Copyright Designs and Patents Act 1988, s 114. Under UK law, the duration of a literary or artistic copyright is the life of the author plus 70 years (s 12) or in the case of a sound recording it is 50 years from first release (s 13A, 14). In the case of films it is the life of the director/author/composer plus 70 years (s13B).
The Audiovisual Sector
The main reason that these laws are in place are because the audiovisual industry is unlike any other industry as to the fact that does not simply produce goods to be sold on the market like other goods. The audiovisual sector in itself is a creative and artistic industry a quintessential part of our media rich society. Audiovisual professionals play a part in influencing what people learn, believe and even feel. In an industry where competition is very high; broadcasts, films and reports must be bound by common values such as freedom of expression, protection of authors and their works and consumer protection. Although multimedia products are of such great economic importance, there is no direct legislation to protect them. This does not mean that there is no protection at all for these products; the protection that they fall under is simply a collection of existing statutes from copyright, contract and tort law. These laws (described above) were designed so that when new technologies were introduced, the definition would be broad enough to take in these new advances. In most cases, multimedia works can be within the scope of the Berne Convention so they are protected by a united (mainly European although USA joined in 1988) enforcement of copyright which allows authors to enjoy the same rights as their own nationals enjoyed. These existing laws present one advantage and that is that they are well known, long practiced and because of various conventional agreements they have established worldwide rights. Other conventions that have contributed to more united legal system regarding intellectual property are:
The Rome Convention - This helped set up international protection for performers and recording companies which was not part of the Berne Convention.
World Trade Organisation - TRIPS - Requires that all members belonging to WTO must sign up to virtually all of the Berne Convention. Also helped recognise computer works become protected under law.
World Intellectual Property Organisation (WIPO) - One of the 16 specialized agencies of the United Nations system. WIPO is responsible for promoting the protection of intellectual property throughout the world. It fulfils this responsibility by promoting cooperation among nations in intellectual property matters, administering various "unions"¯ and other treaty organizations founded on multilateral treaties, and creating model laws for adoption by developing nations.
Audiovisual services have been linked to the continuation of cultural identity, social values and have also played a major role in shaping public opinion whilst helping to develop artistic ability. Because of these factors, governments worldwide have provided links to develop growth in the industry but also enforced initiatives to protect the receiving parties from alien social influence. The audiovisual sector itself undergoes many major changes as a result of the introduction of digital technologies, these changes being closely linked to causing the alteration of both national law and a company's regulatory framework. The development in these technologies have given consumers access to a mass market of entertainment and information services, helping to increase commercialisation in the audiovisual sector but it has also made the industry more susceptible to competition from global corporations.
"Copyright arises automatically in the expression of an idea in a material form, whether it be a literary, artistic or musical work, or by way of a "derivative copyright" in the form of a sound recording, film, broadcast or cable programme service. It is one of a number of different rights which are known as intellectual property rights (IPR)."¯ (3)
Digital technology provides a new and potentially beneficial opportunity to exploit IPR in content, initiating a whole division of rights that are really rights of "use"¯ and not rights that are particularly exclusive. These rights will be explained in detail concentrating on individual media and not multimedia rights as a collective.
Piracy
One of the main threats to electronic publications (multimedia included) in a digital environment is illegal reproduction or "Piracy"¯. Copyright industries in the North America and in Europe have forcefully maintained that insufficient protection would threaten the basic motivation of copyright and possibly jeopardise future investments in creation and innovation of multimedia products and electronic publications (Union for the Public Domain 1996; Kurtz 1996; Samuelson 1996a; Vinje 1996a, 1996b). With this in mind, systems of security are being developed that complement existing laws to provide control and protection of digital copyrighted data. Such systems in existence now cover much different multimedia content:
DRM: Digital Rights Management - A system for protecting the copyrights of data circulated via the Internet or other digital media by enabling secure distribution and/or disabling illegal distribution of the data. Typically, a DRM system protects intellectual property by either encrypting the data so that it can only be accessed by authorized users or marking the content with a digital watermark or similar method so that the content can not be freely distributed. (4)
CSS - A CSS encoded DVD disc contains movie data which is MPEG-2 compressed. This compressed data is then scrambled according to the secret CSS algorithm and a set of keys. To access the data on the disc, a device must know the CSS algorithm, including the method of key extraction, and be in possession of certain authenticating keys. A PC performs a handshake with an authenticating device on the disc drive. This handshake establishes an encrypted path for the transmission of keys, and by convention, authorizes the release of data from the drive as well as the reading of certain title-related keys which are located on a normally inaccessible part of the disc. (5)
These systems themselves are also protected by law against circumvention and/or tampering. Such a law is in effect under WIPO Copyright's Article 18:
"Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."¯ (6)
Even though the use of DRM technologies is rising, DRM restrictions have not helped to stop internet piracy. With the advent of peer-to-peer (P2P) technologies, DRM approaches have become obsolete, with users being able to publicly trade digital media with no restrictions whatsoever.
Responses to the rise in piracy
With the concern over internet piracy growing, the US and the EU have led the response to industry concerns about copyright extension. As multimedia and its products have developed, governments have begun to modify and reform their copyright regime to help encompass the changes in the digital environment. Since 1992, WIPO has encouraged the development of what it called its "digital agenda"¯ which aims to introduce measures to focus on the number of digital copyright problems by amending the Berne Convention (explained above). Both the US and the EU have taken legislative steps to help digital copyright infringement:
The European Union
The EU has set out to make all countries under its umbrella to be linked via the internet, a large network that would help move information quickly and help to increase commerce, increase competition and develop wider social structure. The EU in regard to the development and implementation of a digital marketplace stated that:
All the parties involved (right holders and other content providers, manufacturers, service providers, network operators, professional users and private user groups) emphasise that these developments {in multimedia and electronic information services} will not take place without a functioning and effective Single Market in copyright and related rights.
(Commission of the European Communities 1996)
With the development of the Digital Millennium Copyright Act in the US (explained below), rights holder organisations saw the opportunity to push proposals that had been rejected by the diplomatic conference that led to the WIPO treaties. In particular they were keen to reintroduce the detailed anti-circumvention rules previously proposed by the US but rejected in favour of the simpler and more flexible ideals detailed in Articles 11 and 18 of the final WIPO Copyright and Performances and Phonograms treaties.
It ended up that both the EU and US had legislation that specifically outlawed acts of circumvention and circumvention devices, rather than concentrating on acts of copyright infringements.
An example of copyright protection introduced by the EU was protection for literary, dramatic and musical works produced by nationals of the European Union has been accepted by all member states and now protects works for the length of the author's life plus seventy years.
The United States
The US Government took drastic steps to help protect copyright owners. On 28th October 1998, President Bill Clinton signed into law a controversial copyright statute called the Digital Millennium Copyright Act (DMCA). The purpose of the DMCA is to update the current Copyright Act and for the digital environment to ensure US law conforms to the requirements of WIPO treaties negotiated in Geneva in December 1996. The act itself makes it illegal to import, manufacture or distribute any device that serves to 'avoid, bypass, remove, deactivate or otherwise circumvent without authority of the copyright owner of the law, any process, treatment, mechanism or system which prevents of inhibits the violation of any of the exclusive rights..' (HR 3531 104th CONGRESS). The act also creates a safeguard for Online Service Providers (OSP's, including ISP's) against copyright liability if they promptly block access if they receive a notification from a copyright holder about infringements by their users.
At that time, another bill was written to law named the Copyright Extension Act. This act extends the length of copyright from "Life + fifty years"¯ to "Life + seventy"¯ for individual authors and to ninety-five years from seventy-five for corporate author's.
One case that is right at the centre of a piracy debate is that of MGM v. Grokster. This is a case where twenty-eight of the world's largest entertainment companies brought a lawsuit against the makers of the Morpheus, Grokster and Kazaa software products aiming to set a precedent to use against other technology companies (7). The question this trial aimed to answer is to clarify the border between copyright and innovation, if a distributor of a multi-purpose tool can be held liable for the infringements that may be committed by the end-users of the tool.
One of the main points in this trial, especially by some of the Justices in the case seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. Some of the Justices asked MGM, could the inventors of the iPod (or the VCR, the photocopier or even the printing press) know whether they could go ahead with developing their invention. It surely would not be difficult for them to imagine that somebody might come across the idea of marketing their device as a tool for infringement. MGM's answer to this enquiry was pretty unsatisfying. They said at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one's own CD collection and storing it on the iPod. This was an interesting point because there were probably people that supported MGM in this trial but did not think that the analogy was one bit legal. In any event, MGM's iPod example did exactly what their proposed standard expressly doesn't do: it evaluated legality of the invention based on the knowledge available to the inventor at the time, not from a future perspective that asks how the invention is subsequently marketed or what business models later grow up around it.
Grokster eventually went on to win the case in the Ninth Circuit Court of Appeals which established that if one is to make a truly decentralised P2P software you cannot be held liable for any copyright infringement that takes place on their networks. This is the "Betamax principle"¯ from a famous Supreme Court case that established that Sony wasn't responsible for any infringement that its customers undertook with their VCR's. The Studios' argument was that people who make P2P software should be obliged to build it in such a way as to make it easy to police, an argument that would later be dismissed.
Conclusion
As multimedia technology develops and the restrictions on copyright grow tighter, there is the increased prospect of piracy. Copyright protectors are increasingly aware of the growth of the piracy industry and its potential influence on the development of digital media products from both individual authors and corporate industries.
Multimedia professionals will never be completely protected by copyright law, meaning that I do not think they are adequately protected in their field of work. Most cases we hear to do with multimedia law concentrate on big business where, if laws were re-examined as these businesses they keep urging, the step would go only as far as to satisfy the copyright owner's immediate economic aims and not satisfy the freedom to innovate. In the case of Grokster, it was not the file-sharing medium that should have been targeted, it should (and now is with the introduction of the RIAA and the MPAA in the US) have concentrated on the individuals themselves that were "ripping"¯ and distributing the files across these networks.
The law can only cater for one side of a court ruling, meaning that law can work for and against copyright holders. In the case of Grokster, it has set a precedent where if any other P2P protocols or programs are taken to court, the defendant's will have both the Betamax and the Grokster rulings to help their defence when summoned.
In the case of innovation, multimedia authors need to be well aware of how they create and they publish their works, exercising their own intellectual property rights with every publication. Cyberspace is a virtual patent infringement minefield and detecting infringements has become relatively easy with the interconnected nature of the Internet, authors have to take into account many different factors before they even publish their work. They have to:
"¢ Review prior art - To identify the current state of the technological environment and possibly prevent patent infringement (Polaroid vs. Kodak, 1986 - Instant camera patents).
"¢ Evidence of due care - Keeping track of related patents and new patents, important to prepare for potential infringement suits (Wang Global vs. Netscape, 1998 - patents in browser software).
Just to name but two.
Basically, for a multimedia professional to be truly safe from a lawsuit, they have to exhaust all prior avenues of the technology they are developing. Its not that the law itself is wrong, it's that fact that it is confusing and potentially easy to miss. Copyright law as it stands could stifle innovation, reduce competition and with the sudden increase of "patent flooding"¯ it could cause the "little fish"¯ to be forced out of the industry.
References
(1) - Computer Law by Colin Tapper, 4th edition, Longman, 1989.
(2) - LancĆ´me Parfums et BeautĆ© et cie S.N.C. v. Kecofa B.V., I.B Ā¶ 4 (Dutch Ct. App., Den Bosch, 2004), online at www.piercelaw.edu/tfield/tresor.pdf (Accessed March 23, 2005) All references to the case are to that translation.
(3) - Do You Know Your Rights, Minister? - Andrew Millett - Available online at http://www.mishcon.co.uk/inp/inp_b/techbrief/tech0202.htm Accessed March 30, 2005)
(4) 6am Media - Glossary - Available online at http://www.6am-media.com/glossary.php - [Accessed May 10, 2005].
(5) Licensing Requirements For The CSS DVD Copy Protection Method - Michael Moradzadeh - Intel Corporation - Available online at http://userpages.umbc.edu/~awirth1/decss/csspaper.pdf [Accessed May 10, 2005].
(6) WIPO Performances and Phonograms Treaty - WIPO - Available online at http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html#P141_21174 [Accessed May 10, 2005].
(7) MGM v. Grokster - Available online at http://www.eff.org/IP/P2P/MGM_v_Grokster/ [Accessed May 10, 2005].
http://puck.emeraldinsight.com/vl=1081487/cl=17/nw=1/rpsv/cw/www/mcb/14691930/v2n1/contp1.htm [Accessed May 12, 2005].
(8) Puay Tang - INNOVATION, ELECTRONIC PUBLISHING AND THE MANAGEMENT OF INTELLECTUAL PROPERTY: What of digital piracy? - http://www.ingentaconnect.com/content/routledg/rics/1999/00000002/00000001/art00004 [Accessed May 12,2005].
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