Copyright in the Digital Domain
| Author: |
Rhys Bollen
|
| Issue: |
Volume 8, Number 2 (June 2001)
|
Contents:Copyright in the Digital Domain
- The early 21st Century has been described as the Information Age. It is a
period in which the most valuable resources are access
to and control over
information. As a result copyright and other intellectual property laws are of
increasing significance. The
success of a commercial enterprise depends,
amongst other things, upon its ability to effectively exploit its information
resources.
Furthermore, social and political intercourse relies heavily on the
quality and volume of these intangible assets that are available.
- Developments in broadband communications, digitalisation, convergence and
globalisation raise serious implications for all regulatory
regimes - especially
that of the law of copyright. Following an analysis of each of the four
factors, this paper examines the nature
of digital material and the rights over
such material conferred by the copyright regime. Particular consideration is
given to the
recent Copyright Amendment (Digital Agenda) Act 2000 (Digital
Agenda Act) reforms, which commenced on 4 March 200[1]
Finally possible
technological, commercial and legislative solutions to the challenges of the
digital domain1 are discussed.
- For the purposes of this paper, digitalisation refers to the ability of a person
or system to convert a piece of information, a representation
of reality or a
recording of some matter into digital form. "[I]n a digital world, all creation
- be it a novel, a poem, a shopping
list, a painting, a photograph, a movie or a
recording - are reducible to strings of noughts and ones".[2]
It is possible to
digitalise anything not ostensibly physical.[3]
- All material, content and information that can be represented in some virtual
manner is capable of being recorded in digital code.[4]
In a discussion of
virtual reality, [5]
Mille noted:
"[T]he digitalisation of representations of any nature [has] made all kinds of
shapes, colours, lights, odours, temperatures and
almost any expression of
reality susceptible of being recorded, stored, processed, reproduced, and
transmitted by computer means".[6]
Digitalisation is the essence of the concept of dematerialisation,
"a term which describes the result of the passage of goods and
services from a
physical medium to a logical medium (eg: paper money is the physical medium of
money, the information that the PS
[payment system] of a store exchanges with
the computer of a bank is a logical medium)."[7]
- The digitalisation of all tangible subject matter has produced a kind of
"technological Latin".[8]
This is due to common formats emerging for the storage,
manipulation and transfer of digital material.[9]
Boundaries of language,
geography and proprietary technologies are being stripped away in the digital
domain.
- There are serious issues for the application of copyright in this context.
Angela Bowne comments,
"The digitisation of intellectual property enables it to be used in many
different media, to be copied at the same quality as an
original, to be
manipulated and distorted, and to be distributed throughout the world cheaply,
easily and speedily."[10]
- When the Copyright Act 1968 (Cth) (the Act)[11]
was first drafted, there were
clear distinctions between the various technologies addressed. Television,
radio, cable services,
published literature, artistic works, phonograms and
other items were relatively autonomous.[12]
- However, as Yastreboff explains,
"Information services which were once delivered by 'distinct and separate
technologies (such as paper, cassette tape, video and CD[13]
may now be delivered
by the same or interchangeable technology'. That is, 'digital technology
provides a common universal language
for all services', including text, voice,
image and graphics."[14]
This phenomenon is known as convergence.[15]
Network convergence refers to the
merging of infrastructure and communications systems.[16]
As a result, previously
distinct services such as radio and television broadcasting, telecommunications,
publishing and cable services
have begun to merge. Organisations, in adapting
to these new realities, have also displayed an element of convergence in that
one
entity may now be involved in both content creation and distribution, or in
the creation of different types of content. [17]
- Personal computers are able to carry out tasks that were previously the domain
of separate autonomous appliances and systems. Such
a development was discussed
in Audio-Visual Copyright Society Ltd v New South Wales Department of School
Education:[18]
"[W]ith the prospect of moving from analogue to digital recording, there would
be a convergence of television, VCR, computer and
digital recording technologies
into a single living room Internet communication, information and entertainment
unit. It would be
connected to the web by optical fibre and/or satellite and
receiving and recording information, video, film and music on-line from
a
provider to be accessed instantly or at some later time. . . if this level of
service were achievable, the need to copy might decrease
significantly."[19]
This universal communication device is known as a Central Information
Appliance.[20]
- Flowing from the above, there have been calls for legal and regulatory
convergence. In the light of the overlapping technological
functions being
provided by various digital systems, commentators argue that a common regulatory
structure is necessary.[21]
The Digital Agenda Act and the Electronic
Transactions Act 1999 (Cth) are two examples of this development.
- The Digital Agenda Act received royal assent on 4 September 2000 and commenced
on 4 March 2001. This followed a number of reports[22]
both in Australia and
overseas, that recommended legislative changes. The key changes include the
provision of technology-neutral
transmission and making available rights, an
exemption for transient copies produced in the course of electronic
communications,
the limitation of liability for carriers and technological
protection measures. However, there are a number of important issues
that were
raised in the reports but not resolved in the Digital Agenda Act and it is hoped
that they will be addressed in future
legislation.[23]
One striking example of convergence has been the emergence of multimedia.[24]
Multimedia encompasses "the convergence of video, audio and telephony
technologies. It is a single work combining a rich variety
of underlying works
such as text, sound and visual images, both still and moving".[25]
- The significance of convergence should not be understated. The World
Intellectual Property Organisation (WIPO) Copyright Treaty of
1996 (the WCT)
recognised "the profound impact of the development and convergence of
information and communication technologies on
the creation and use of literary
and artistic works".[26]
- In recent years communications technologies have developed rapidly. Not long
ago data transmission speeds of 2400bps[27]
were common. Present compression
technologies and infrastructure improvements facilitate 56Kbps transmissions
over conventional
telephone lines. The next generation communications
technology, such as fibre-optics and satellite transmission, is known as
broadband
communications.[28]
- Complementing the increased speeds of communications links have been
improvements in the quality and reliability of these systems.
Sophisticated
software controls have enabled the creation of error correction and monitoring
systems that significantly enhance
the quality of the end product. Some
telephone conversations are now carried using Internet protocols, due to their
cost-effectiveness.[29]
- Broadband systems allow massive amounts of data to be transmitted almost
instantaneously. This facilitates usage of communications
links not previously
considered commercial.[30]
For example, a few years ago it was not unusual for an
hour to be required to download a song over the Internet. Now businesses
are
developing around the concept of online distribution of music.[31]
Transmission
of feature films, in the near future, will enable video-on-demand.[32]
- When combined with convergence and digitalisation, the emergence of broadband
communications technology poses a number of challenges
for copyright management.
It means that vast amounts of data, representing nearly all information, content
or material, can be transmitted
from one person to another quickly, easily,
cheaply and reliably.[33]
- Globalisation has received a pejorative connotation recently in Australia.[34]
In
this paper, the term simply refers to the growth in commercial interdependencies
between Australia and other nations. International
trade is not a new
development, however it has grown in significance. At present, most markets are
truly international. Commodities,
manufactured goods, services and capital are
being continuously exchanged between nations. Transport and communications
links have
developed to the extent that there are few significant barriers to a
foreign firm entering domestic markets.[35]
- The globalisation of information and entertainment markets has been profound.
Inherently, they are markets in which few natural barriers
exist.[36]
Global
telecommunications links enable information and news content to be exchanged
between businesses and consumers on different
continents. The same is true for
educational and entertainment services. As a result we experience the
globalisation of information.[37]
- Consumers are adapting to these developments by acquiring goods and services
from offshore suppliers. This is especially true with
intangible, digital
products.
- For these reasons, international harmony in regulation and supervision regimes
is essential. Corporations can conduct regulatory
arbitrage by moving their
operations into nations with lighter legal and regulatory burdens. [38]
Sovereign
nations have little ability to unilaterally alter their legal landscape. Global
measures, such as WIPO conferences, have
become a key means of conducting
regulation in the global economy.
- Content, for the purposes of this paper, means text, data, sounds, images or
other records of the results of a person's observation
or perception.[39]
Digital
content is that content which can be stored in digital form.[40]
Hardware and
software may be required for the recording, storage, use and later perception or
observation of the phenomena.
- Due to the character and nature of digital content, copyright and other legal
regimes struggle to regulate its use and exploitation.
Digital material is
inexpensive to work with and is easily manipulated, stored, copied and
transported. Further it leaves minimal
records and fundamentally challenges our
economic notions of value and price.[41]
Many traditional disincentives to
copying do not apply to the digital medium and as a result creators fear a loss
of control over
their work.[42]
- The equipment needed to use, create, transform and communicate material stored
in digital form is relatively inexpensive. CD players,
personal computers and
scanners are present in many people's homes and most businesses. Further, it is
a straightforward task to
take existing digital material and create a
derivative, either by combining two pre-existing items or by adding one's own
creation
to existing material.
- Any commercially available word processing program has the capacity to create
digital content. Further, such programs allow a user
to easily adapt or
manipulate existing digital material. Combined with a scanner or manual data
entry, an individual is able to
convert any text-based material into digital
content. Such content is then easily stored and used. The same is true for
audio,
audio-visual and visual material although slightly more complex equipment
and software is needed.
- Storage is much simpler in the context of digital material. Whereas a
collection of books may require a room full of shelves, the
same material in
digital form can be stored on a CD taking a fraction of the space. Information
or data can be readily retrieved.
The extensive indexing and searching
technologies available enhance this capability.
- Digital material can be transported almost instantaneously, effortlessly and
inexpensively. For example, international communications
links allow high-speed
transportation of audio-visual files with high accuracy and minimal errors. The
cost of such is at least
comparable to voice communications and, using the
Internet, may be far cheaper.
- Unlike physical uses of content, no records need be kept of the use of digital
material. Perfect quality copies may be made that
are indistinguishable from
the original. There are usually no restrictions on the number of copies that
can be made. These copies
can be made in a very short period of time and for
almost no cost. These factors pose considerable problems for civil or criminal
authorities.
- Traditional economic concepts of value are difficult to apply in the digital
domain. Scarcity, in terms of physical units or copies,
is not an issue. The
effort involved in the production or creation of extra copies and reproductions
of content may be minimal or
almost non-existent. Conventional economic
analysis suggests that the equilibrium price of a good or service provided
within a competitive
market will approach its marginal cost.[43]
Marginal cost
per unit of production of a copy or reproduction of digital content is
negligible and from a competitive cost point
of view the equilibrium price is
almost nothing. Hence, the competitive market may be unable to price digital
content, or may conclude
that such content should be free.
- There may be challenges in identifying which party deserves economic
compensation. For example, how would the market respond to a
person who uses
digital recording devices to convert an analogue sound recording into a digital
one? Another challenge in valuing
digital content is that it may be the nonprotected
elements of a work, such as the idea instead of the expression, to
which consumers
attribute value. Current costing and pricing methods are
difficult to apply in the digital domain. As discussed later in this paper,
alternate business models and paradigms are developing to suit the new era.
- This evolutionary challenge is one familiar to copyright. For example, similar
concerns to those being presently raised in respect
of the digital domain were
raised with the advent of the photocopier.[44]
Each technological development has
required reassessment and adaptation of copyright law and practice.
- Protection of digital material under the Copyright Act depends upon whether the
material can be included within one of the specific categories of works and nonworks.
[45]
Most digital content does not fit easily into only one category.[46]
This is not a new issue for the copyright regime; however, with the impact of
convergence digital material is particularly difficult
to characterise. More
significantly, some material may not fit into any of them. Instead of strictly
following the discrete categories
provided for in the Act, the following
discussion groups together the main kinds of digital content according to the
stimuli observed.
Following that, the copyright protection afforded to the
various kinds of content is considered. Finally, some issues common to
the
different types of content are discussed.
- A literary work is not exhaustively defined in the Act. In University of London
Press Ltd v University Tutorial Press Ltd, Peterson
J held "the words 'literary
work' cover work which is expressed in writing, irrespective of whether the
quality or style is high".[47]
Essentially a traditional literary work includes
any written material resulting from at least minimal creative effort.
- Early in the development of digital material, there was debate as to whether
written material stored in digital form constituted a
literary work. Although
different in their means of representation, digital text and paper-based text
are functionally very similar.
Both are basically a method of recording and
communicating written information.[48]
- Generally computer software has been protected as a literary work under Part III
of the Act. However, some jurisdictions have protected software under other
categories as well, such as a broadcast.[49]
Prior to 1984, the Act did not specifically refer to software.[50]
In Apple
Computer Inc v Computer Edge Pty Ltd,[51]
Apple argued that both a written
computer program[52]
and binary code[53]
were literary works. In both appeals the
courts held that the written computer program was a literary work and capable of
protection.[54]
However, in the High Court, the binary code was not considered a
literary work as it was not an adaptation or reproduction of the
source code
(nor was it considered a literary work in its own right).[55]
Following the National Symposium on Legal Protection of Computer Software[56]
the
Act was amended to provide that a literary work includes "a computer program or
compilation of computer programs".[57]
At the same time a definition of "computer
program" was inserted, being:
"a set of statements or instructions to be used directly or indirectly in a
computer in order to bring about a certain result."[58]
Autodesk Inc v Dyason[59]
was one of the first[60]
cases where the High Court
considered the application of the amended Copyright Act to computer software.
Each user of Autodesk's Computer Assisted Drafting (CAD) software (known as
AutoCAD) needed an anti-counterfeiting
device (known as a dongle) to operate the
program. The dongle emitted an electronic signal that the main program tested
for before
it would operate.[61]
Dyason used an oscilloscope to record the signal
and produced a device that would mimic the dongle and "trick" the AutoCAD
software
into thinking the holder was a legitimate user. The signal being
emitted from the dongle was a sequence of digital computer code,
equivalent in
size to a sixteen-letter word.[62]
Autodesk brought an action against Dyason
claiming that Dyason had infringed Autodesk's exclusive rights in their
creation, that
is, the code in the dongle and AutoCAD software.
- Dawson J, with whom Mason CJ, Brennan, Deane & Gaudron JJ agreed, stated that
the device produced by Dyason infringed Autodesk's
copyright.[63]
They held that
the binary code sequence, whilst not a computer program capable of protection in
itself, was a substantial part of
the program created by Autodesk to protect its
software (that is, the relevant component of the AutoCAD software). The "the
127-bit
series . . . in the Auto Key lock [the Dyason device] constituted a
reproduction in material form of a substantial part of any actual
or theoretical
'expression' in binary 'notation' of the 'set of instructions' constituting" the
anti-counterfeiting component of
the AutoCAD software.[64]
It appears from this
case that a small piece of digital code, without any semblance of instruction or
procedure, would not constitute
a computer program. Dawson J explained that:
"It may be possible at a certain level of discourse to speak, for example, of
the operation
of an electric light switch as the giving of an instruction to the
mechanism to turn on the light, but it is an unusual use of language.
The steps
taken in the operation of the AutoCAD lock [the dongle] involve no more than the
steps taken in the operation of an ordinary
household electric light switch and
so may be thought not to amount to the embodiment of any logical process
requiring the use of
a language, code or notation such as is required for the
expression of a computer program in a more conventional sense. Moreover,
so far
as the AutoCAD lock is concerned, it is not possible to identify any
instructions beyond the inherent characteristics of its
component parts . . .
"[65]
- However, a small piece of digital code may otherwise be protected by copyright.
In Autodesk, Dawson J stated that the binary code
sequence could be
characterised as a table and could have been protected, in itself, as such.[66]
In Powerflex Services Pty Ltd v Data Access Corporation[67]
the court examined the
breadth of copyright protection for software. One party had designed a program
to carry out similar functions
to the software produced by the other and had
even described the functions in the same manner. Hence they shared a large
number
of common "commands" that produced similar results. However, this
similarity did not exist in the actual software code. This highlights
the
difficult distinction that exists in copyright law between the protection of
expressions and ideas.[68]
The Court had to consider whether the tasks being
carried out by the two computer programs were expressions of the author's ideas,
or the ideas themselves.
- At first instance, the court decided that the tasks were expressions themselves
and capable of protection.[69]
It was held that copyright existed in the labels
given to the actual tasks. The Full Federal Court, who found that the tasks and
their labels were merely ideas, overturned these findings.[70]
The expression of
these ideas, the computer code, was not substantially similar and had not been
copied. This case provides a limit
to the scope of copyright protection of
software, in that the actual computer code, although not perceived by the user,
must be substantially
similar to warrant a finding that a reproduction has
occurred.
- In Admar Computer Pty Ltd v Ezy Systems Pty Ltd the Federal Court examined the
copyright status of pseudocode.[71]
In this case, the court "ruled that a breach
of copyright claim in a computer program cannot be proved by reliance on
pseudocode,
being a method of describing in English the task being performed by
. . source code".[72]
That is not to say that evidence of reproduced pseudocode
is not a relevant matter. However, the pseudocode is analogous to the
idea being
expressed in the underlying source code and therefore does not receive copyright
protection.[73]
- In respect of both Powerflex and Admar it must be noted that, had the defendant
copied a document setting out the commands to be used
(the pseudocode to be
followed) in a piece of software, a breach of copyright would have occurred.[74]
This is because the written account of the pseudocode would probably be a
protected literary work in itself.[75]
- Convergence, as discussed earlier, poses some challenges in the sphere of
software copyright. Later this paper discusses the protection
of digital films
and audio-visual material. However, a digital creation may have elements of
both a film and piece of software.
This situation arose in Galaxy Electronics
Pty Ltd v Sega Enterprises Ltd.[76]
In this dispute about a computer game, there
was no doubt that software was involved. However, there was some debate about
the most
appropriate protection for the images displayed. The images were
generated from a combination of data stored in the computer and
the interaction
of the user.[77]
Two issues arose as a result. First, there was a distinction
made between the computer code that represents the rules and routines
being
followed by the computer[78]
and the adjectival information used by the computer
as audio-visual content.[79]
The second issue relates to interactivity[80]
and is
considered later in the paper as it applies to all digital content.
- In relation to the first issue one commentator concluded:
"The visual images comprising the cinematographic film were distinct from
the
set of instructions contained in the computer programs. The visual images were
not part of the program, but were its effect,
produced by the interaction of the
computer program with the integrated circuit."[81]
However, such sentiments are by no means universal, as the following statement
shows:
"There has been considerable debate and speculation as to whether a multimedia
product is eligible for protection as a computer program.
It seems clear from
the High Court decision in Autodesk that the definition of computer program and
protection for computer programs
can include not only the set of instructions
but also data associated with the set of instructions".[82]
The second statement conforms more closely to the definition of software in the
Act. That is, the data is part of the literary work
that is capable of
protection. This was not resolved in Sega as the data in question, the visual
images, was protected under another
head.[83]
- The copyright protection of computer software has broad implications. It can be
argued that any digital content may be protected
as a literary work. Almost all
digital content, being data stored in a digital file of some sort, could
conceivably constitute a
computer program. This protection would be in addition
to any available under the other heads of the Act. A picture or text file
may
be considered a computer program to the extent that it is a set of instructions
as to the image or words to be displayed by a
computer or other device.[84]
In
the light of Roland Co v Lorenzo and Sons,[85]
it is not certain that the courts
would adopt this reasoning. The same analysis applies to audio-visual and audio
material.
- A number of cases, in the digital realm and in other contexts, have examined
whether small or seemingly mundane items can receive
copyright protection. As
discussed earlier,[86]
in Autodesk v Dyason[87]
the High Court held that a
relatively small piece of digital code could receive protection as part of a
literary work. The work
in question was a 16 digit alphanumeric code used as an
anti-copying measure by the Autodesk publisher.[88]
Although relatively small and
of little "literary" or "creative" value, the Court held that such a piece of
code would receive protection
as a computer program. Hence, it may be possible
to say that a rather more complicated and lengthy graphic file, also a sequence
of digital code,[89]
would receive protection.[90]
- The courts may adopt a technology-neutral approach in relation to digital
content. In Roland Co v Lorenzo and Sons, Pincus J held
that a document created
using a word processing package received copyright protection as a literary work
upon its entry into the
computer system. Pincus J commented that:
"the view I have arrived at amounts to treating the content of the word
processor disk
as a 'literary work', although it does not fall within the
statutory definition of 'computer program'. I would not, for this purpose,
distinguish that content from any other coded information, able to be
transformed into ordinary language and other symbols."[91]
The digital material received the same protection that a work created using a
pen and paper would have been afforded.
- The minimum content needed to attract copyright protection appears to be
particularly small, as cases such as Autodesk highlight.
However, singular
words are not generally substantial enough to merit copyright protection: Exxon
Corp v Exxon Insurance (Consultants).[92]
The rationale for that case seemed to
be that a single word couldn't be characterised as a work. Although this
appears to display
common sense and follow a colloquial understanding of the
concept of a "work",[93]
it does not provide guidance to one wondering whether a
small item will receive protection. In the context of computer software,
reference to literary enjoyment and the layperson's understanding of what
constitutes a "work" is not of assistance.[94]
- A number of cases in the Internet context have questioned, inter alia, the size
of a work capable of protection.[95]
In the Shetland Times case[96]
one news
provider accused the other of infringing the copyright in its news stories. The
defendant did not actually copy, at least
in a traditional sense, the
plaintiff's publication. Instead the defendant, using a technique known as
framing, displayed the content
made available at the plaintiff's website within
a border created by the defendant.[97]
Unbeknown to the viewer, two different
sites were being viewed simultaneously but packaged in a way that made viewers
think they
were only viewing content provided by the defendant. The plaintiff
complained that the defendant had breached the copyright in the
plaintiff's
headlines.[98]
The defendant had used the headlines of the plaintiff as the links
on the defendant's website. In an interim award, the court suggested
that
headlines themselves might be protected by copyright.[99]
- Another issue relates to the protection afforded to scanned or digitalised
content.[100]
This is considered in more detail below.[101]
- The protection of a piece of content as computer software has some limitations.
Whereas an artistic work is protected according to
the visual impression
observed by a viewer,[102]
the protection of computer software requires an
analysis of the means used by the author. Where two computer programmers
produce
the same observable phenomena using completely different code, there may
be no copyright breach involved.[103]
Hence, the protection afforded to software
is in a sense more technical and narrow. The phenomena produced by a computer
program
and observed by the user is characterised as the idea of the author, not
its expression.[104]
- A cinematograph film is defined in Act as:
"the aggregate of the visual images embodied in an article or thing so as to be
capable
by the use of that article or thing:
(a) of being shown as a moving picture
(b) of being embodied in another article or thing by the use of which it can be
so shown;
and includes the aggregate of the sounds embodied in a sound-track associated
with such visual images".[105]
- A number of cases have examined the scope of the film category, especially in
relation to digital content. As noted earlier, Galaxy
Electronics Pty Ltd v
Sega Enterprises Ltd discussed whether a computer game could be categorised as a
film.[106]
The court approached the issue from a "technology-neutral" perspective
and held that the effect observed by the viewer was the important
issue, not the
means utilised.[107]
Therefore, the fact that the images and sounds were stored
in digital files on a computer instead of conventional magnetic film
was not
material.[108]
- Computer games challenge the traditional concept of a motion picture film. Each
time the game is played, the sequence of sounds and
images presented to the user
varies, depending upon the user's interaction with the computer program. The
court held that this "non-linear"
content could still be categorised as a
film.[109]
That no "two sequences of images will be identical, since the actual
images seen in any particular game reflect player input, did
not mean that the
sequence was incapable of coming within the definition of 'cinematographic
film'".[110]
The South African Supreme Court came to a similar conclusion in
Golden China Game Centre v Nintendo.[111]
Many examples of multimedia[112]
are likely to be protected under the
cinematograph film category. It is uncertain, however, how broadly courts will
interpret the
concept of a film. Although a number of courts have protected
relatively non-linear computer games as films, the games in question
have had a
limited number of possible scenarios. In each the game's authors created all
the scenarios, at least to an extent.[113]
- Whether a reference work such as an online encyclopedia would be similarly
protected is uncertain. It would be harder to characterise
as a cinematograph
film. However, a court may be willing to characterise this as a collection of
numerous literary works, sound
recordings and cinematograph films. For example,
in Ahn v Midway Manufacturing Company a court had to consider the protection
afforded
to the components of another computer game.[114]
In the production of
the game, actors had been choreographed and filmed in various scenes to be used
in the program. The court
was willing to protect the choreography itself as a
separate item of content, regardless of the fact that it was commissioned for
and used in a larger work.[115]
- Artistic works are protected by the Act where they fall within the following
categories:
"(a) a painting, sculpture, drawing, engraving or photograph, whether the work
is of artistic quality or not; or
(b) a building or model of a building whether the building or model is of
artistic quality or not; or
(c) a work of artistic craftsmanship to which neither of the last two . .
applies."[116]
The courts have examined the concept of an artistic work in a few unconventional
cases. Drawings have been held to include engineering
sketch outlines of a
pattern and the shape of a toy.[117]
- A photograph is defined in section 10(1) of the Act to be the "product of
photography or of a process similar to photography". This would at least
encompass the product
of a digital camera and probably includes the result of
the scanning of a physical image.[118]
The fact that the Act specifically states
that "a product of xerography"[119]
is included in the definition of a photograph
strengthens this conclusion.
The residual category of artistic craftsmanship[120]
requires a court to consider
the esoteric question whether a particular item displays artistic qualities. In
Merlet v Mothercare
Plc[121]
the court held that a relatively conventional
raincoat design did not constitute a work of art because it was inherently
functional
and was a domestic commodity.[122]
Pape J stated that if the creator's
"intention was to create a work of art and he has manifestly failed in that
intent, that is
all that is required".[123]
A number of other cases have also
examined what constitutes art but it is not possible to provide a general
rule.[124]
As the focus is on the artistic qualities perceived by the viewer, it
appears that a digital work would be on an equal footing with
a physical one.[125]
As long as the material form issues are satisfied[126]
a court would probably
conclude that a drawing presented by an item of digital equipment would receive
the same protection as its
physical equivalent. The same should be true of
paintings and photographs. Engravings and sculptures will probably be limited
by
their physical natures.[127]
- Auditory material may receive copyright protection under two main headings.
First, a musical item may be characterised as a musical
work. Musical is not
defined in the Act but McKeough and Stewart suggest that it involves a
"combination of melody and harmony".[128]
This may be broader than music's
general meaning, which is the "art of combining sounds of voice(s) or
instrument(s) to achieve
beauty of form and expression of emotion".[129]
- Second, a sound recording, being "the aggregate of the sounds embodied in a
record"[130]
is an item capable of protection. A "'record' means a disk, tape,
paper or other device in which sounds are embodied."[131]
There appears to be
little doubt that a selection of sounds[132]
embodied in digital form will receive
copyright protection as a sound recording.[133]
- Separate from the underlying materials involved, copyright exists in the manner
that content is communicated to the public. For example,
copyright exists in
the sounds and or images transmitted to the public in a broadcast.[134]
The
published edition of a literary, dramatic, musical or artistic work receives
copyright protection, albeit a different collection
of rights to the original
work itself.[135]
- The Copyright Act provides a bundle of rights to owners.[136]
These vary
according to the categorisation of the content in question. Creators may
exercise these rights and restrict or authorise
their exercise by other
people.[137]
The distinctions between the various rights become blurred in the
digital domain. There is some debate, in this context, about the
application of
such rights. Each of these issues will be considered in turn.
- Commercial rental and adaptation rights do not pose substantial interpretation
difficulties in the digital domain. However, there
are serious commercial
issues involved. This is due to the nature of digital content.[138]
The natural
disincentives to copy or reproduce content, such as economies of scale and the
lower quality of copies have largely
disappeared. As digital content is easily
copied, transmitted and manipulated, the potential for abuse of the commercial
rental
rights is extraordinary.
- Difficulties arise when identifying adaptations and derivative works as a result
of the ease with which digital material may be manipulated.
Further, certain
processes inherent in the use of digital technology may involve adaptations and
derivations - such as the translation
of instructions between different levels
of software code[139]
or from one operating system to another. Although this is
not new it is a more severe manifestation of the issue that exists in
the
physical realm.
- Reproduction and coping (the duplication rights)[140]
are not generally
defined[141]
Duplication "under the copyright law occurs simply by transferring
copyrightable content from one digital storage device to another."[142]
To
reproduce is generally to "produce a copy or representation of" an item, to
"cause [it] to be seen, heard etc again" or to cause
a second object to be "made
in imitation of" the first.[143]
- Duplication may involve more than one medium, form of storage or presentation.
For example, in Roland Co v Lorenzo and Sons a reproduction
was held to have
occurred where text stored in a digital file was printed out onto paper.[144]
Where the material in question is a musical, literary, dramatic or artistic
work, the reproduction must be in material form to infringe
the copyright
owner's rights.[145]
- Publication is deemed to have occurred where reproductions or copies have been
"supplied (whether by sale or otherwise) to"[146]
or "sold, let on hire or offered
or exposed for sale or hire"[147]
to the public.[148]
In the digital domain, a
number of sub-issues arise.
- First, one must consider whether copies or reproductions have been made
available. In respect of physical distribution of digital
content, such as CDs,
it is evident that a copy has been made available. However, in regard to online
distribution this is less
certain. Transmissions to people using the Internet
may involve a supply of multiple reproductions or copies.[149]
- Second, one must analyse whether the material has been communicated "to the
public". Mere transmissions to a single individual, such
as an email message,
would not constitute making the material available "to the public".[150]
The
phrase "to the public" is not defined in the Act. However, it has been
considered in a number of cases, most recently by the
High Court in Australasian
Performing Right Association Limited v Telstra Corporation Limited (APRA v
Telstra).[151]
Dawson & Gaudron JJ (with whom Toohey and McHugh JJ agreed) held
that a communication to persons in their homes and other domestic
setting could
be a communication "to the public" where numerous individuals receive the same
content at their separate locations.[152]
In the context of a commercial
operation, communications are more likely to be considered "to the public".[153]
- A number of cases have referred to the concept of the copyright owner's public,
being a more limited cross section of the community
who would be willing to pay
for the right to hear or see material. In APRA v Telstra the High Court held
that the persons hearing
the music on hold in their homes and other places
constituted the copyright owner's public. Although they themselves would not
have
been willing to pay for the right to hear the music, there were others[154]
that were willing to bear the cost of that service.[155]
It was the kind of
performance for which a copyright owner could reasonably expect payment.[156]
- By way of comparison, a performance or communication in a domestic or private
situation is not considered to be "to the public".
The threshold, however, is
not high. In APRA v Tolbush the defendant was held to have performed music "to
the public" where they
played tapes in audio systems exhibited for sale.[157]
Every performance to members of the public is capable of being characterised as
a public performance, unless it is domestic. This
conclusion, from APRA v
Canterbury-Bankstown Leagues Club Ltd, was based on the character of the
audience.[158]
Both the Canterbury-Bankstown case and Rank Film Production v
Colin S Dodds[159]
show that use of a publicly accessible venue is not needed for
a performance or communication to be "to the public". In Dodds the
transmission
was from a hotel operator to a single room and a public performance was still
considered to have occurred.
- It is an exclusive right of the owner of material to perform it, or authorise
another to perform it, in public. Performance is not
exclusively defined, but
includes "any mode of visual or aural presentation".[160]
In relation to a film
or record, a performance occurs where the material is perceived[161]
in public.[162]
This does not include material communicated to the public.[163]
However, the
operation of "reception equipment" capable of receiving a "communication" in
public may constitute a public performance.[164]
Reception equipment is defined
as "equipment whose operation, either alone or together with other equipment,
enables people to hear
or see a work or other subject-matter that is
communicated".[165]
In the context of digital material, any act other than a
"communication" that causes content to be heard or seen by the public may
be a
performance. Further, the public use of reception equipment that receives
digital content can also be a performance.
- This may be more easily understood by way of an example. Let us say that a
website operator in Sydney places a copyright-protected
sound recording by an
unrelated party on their server. This is capable of being heard by members of
the public. It may constitute
a publication of the underlying musical work,
depending on the analysis above. Playing the recording may be a relevant
performance
if the action can be said to have been in public. As individual
users would generally listen to the item by themselves in a domestic
capacity, a
court may find that the material has not been performed in public.[166]
Should
the computer be in a public place, such as a library, the issue would be
different. In such a case the material may have
been presented in public. In
Telstra v APRA Gummow J stated that,
"where a work is transmitted along a wire or through the air and is played by
the person receiving it to a public gathering, the
person receiving the
transmission, not the person transmitting it, is deemed to be the person
performing the work in public".[167]
Here the liability lies on the operator of the device.[168]
- The broadcast right is prima facie limited to television and sound
broadcasts.[169]
This right, together with the diffusion right,[170]
was first
given to creators in 1974, before digital communications such as those over the
Internet had become common.[171]
Following the Digital Agenda Act, no separate
right of broadcast is given to copyright owners. Instead, the right to
broadcast
is included within the more general right to communicate to the
public. However, the concept of a broadcast remains in the Act as
copyright
continues to exist in a sound or television broadcast itself (in addition to any
copyright in the content the subject of
the broadcast).[172]
- A number of cases have arisen in the digital domain regarding the exercise of
the broadcast and diffusion rights. The leading case
in Australia is APRA v
Telstra.[173]
Music had been played through Telstra owned systems to members of
the public. In some situations this was with Telstra's knowledge
and
consent.[174]
However, in most situations Telstra merely acted as a
telecommunications provider. As music had been communicated over both wire
and
wireless systems, both the broadcast and diffusion rights were raised.[175]
The
High Court held that Telstra had infringed both the broadcast and diffusion
rights.[176]
This was so even in the situations where Telstra had a passive role
and no knowledge of the infringing use of their systems.
- This case has significant consequences for all owners and users of digital
content. In the words of some Australian lawyers:
"The
significance of this decision is that even as a passive carrier of
copyright material, without control over what material was transmitted
and to
whom, Telstra was found liable for transmission by third parties of copyright
works via Telstra's telecommunications network
to customers of third parties"[177]
"It would appear from the case that an ISP [Internet Service Provider] that
unwittingly transmits unauthorised copyright material
from the Internet to a
customer's computer will be directly liable for the infringement of copyright
caused by that transmission."[178]
APRA has taken action against at least one Australian ISP over this issue. It
is understood that the case has been settled.[179]
APRA alleged that the conduct
of Ozemail's operations included the transmission of copyright-protected
material to the subscribers
of a diffusion service.[180]
- As a result of technological developments and the complexity of the existing
broadcast and diffusion rights, as highlighted in cases
such as APRA v
Telstra,[181]
broadly based rights to transmit material and make material
available to the public were proposed. In the Copyright Convergence
Group
report Highways to Change - Copyright in the new communications environment, it
was recommended that "a technology neutral,
broad based right to authorise
transmissions to the public should be introduced".[182]
- A new exclusive copyright owner's right, "to communicate the work to the public"
was inserted by the Digital Agenda Act. As noted
above, this includes actions
previously caught by the broadcast and diffusion rights. That is, it is the
exclusive right of the
holder of copyright in a work to "communicate" the work
"to the public". This replaces and extends the diffusion right. According
to
section 10:
"communicate means make available online or electronically transmit (whether
over a path, or a combination of paths, provided by
a material substance or
otherwise) a work or other subject-matter."
- The language used is intended to equally apply to wire and wireless methods of
communication.[183]
This was echoed in the WCT[184]
and the Copyright Reform and
the Digital Agenda report released in March 1998, which stated that the:
"proposed transmission right
would apply to transmissions to the public in the
traditional non-interactive sense of 'broadcasting', that is, the emitting of
signals
from a transmitter to a receiving device at a time chosen by the person
making the transmission. The person receiving a broadcast
can only receive it
at the time when the person making the broadcast chooses to make the
transmission."[185]
Use of "online" or "electronic" processes has been made a prerequisite of the
operation of this right, to distinguish it from the
physical distribution of
materials.[186]
Neither "online" nor "electronic" are defined in the Act. There
is a risk that these concepts will themselves be seen as technologically
specific in the future. For example, there is an argument that a communication
using optical technologies is not technically "electronic".[187]
The communication right is limited to communications made "to the public".[188]
This is important as it seeks to ensure that the private and domestic use of
content is not caught. For example, it is not a breach
of copyright to listen
to a friend's CD. It is important, issues of reproduction aside, that similar
kinds of conduct are exempt
under the new provisions.
The communication right covers both the acts of transmission (an active notion)
and "making available"
(a more passive concept). The reports referred to above
and the WCT supported the concept of a right to make material available
"to the
public". Copyright Reform and the Digital Agenda noted:
"the right of making available to the public would be exercised
when copyright
material was made available to the public in such a way that it could be
accessed at a time and a place chosen by
members of the public. This right is
designed to cover interactive on-demand services."[189]
- This differs from the transmission right in at least two respects. First, it
gives a party the right to control whether their material
is made available
regardless of whether or to what extent it is accessed. This enables a party to
take action without having to
prove access and transmission, which as noted
before, is a difficult task in the digital domain. Second, the right extends to
situations
in which a person is able to access or use content without the
reproduction or transmission rights being exercised.[190]
- An example of an ambiguous situation in which the making available right may be
beneficial is that of audio streaming. Audio streaming
is a technique by which
a sound recording is sent to a user in small portions where each is to be
immediately played and discarded
by the user's system. The net affect of
sequential playing of small portions of the recording is the impression of
continuous sound,
like a radio program. It also means that a user does not have
to wait for a large audio file to be downloaded before hearing the
recording.[191]
It is uncertain whether the user ever makes a copy or reproduction of the sound
recording[192]
for the purposes of the Act. However, it may constitute a
performance.[193]
Here a transmission has occurred, but it would be arguable that
only minute portions of the recording are transmitted at any one
time.
- The issue arises whether linking involves the making available of material.
Linking occurs where a website contains an icon or text
that can, if commanded
by the user,[194]
connect them to another website. The first site does not hold
any of the content of the second site, apart from the Internet address
and a
visual[195]
or text description. Pendleton considers:
"In the Internet context an alternative route would inevitably be in existence
as this
would be direct access to the site from which the copyright material was
linked from. . . . The material has already been made available
by the act of
first placing the material on the [primary] site."[196]
Following this analysis, which appears to be the correct one, the act of making
available only relates to the first action that places
an item of digital
content on a server connected to the Internet or that connects to the Internet a
server already containing such
content.
- A few cases have examined the status of temporary copies such as those created
in a computer's Random Access Memory (RAM) during its
use. In MAI Systems
Corporation v Peak Computer Inc[197]
the plaintiff claimed that Peak had infringed
MAI's copyright by copying software owned by MAI into the RAM of a third party's
computer.
The ninth circuit appeals court held that MAI had "adequately shown
that the representation created in the RAM is 'sufficiently
permanent or stable
to permit it to be perceived, reproduced or otherwise communicated' for a period
of more than transitory duration".[198]
A statement was issued by the 1996 WIPO conference that,[199]
"The reproduction right, as set out in Article 9 of the Berne Convention, and
the exceptions permitted thereunder, fully apply in
the digital environment, in
particular to the use of works in digital form. It is understood that the
storage of a protected work
in digital form in an electronic medium constitutes
a reproduction within the meaning of Article 9 of the Berne Convention."[200]
- In Copyright Reform and the Digital Agenda exclusion for transient copies made
in the course of communications was proposed. The
Report justifies this in
terms of achieving a balance between the rights of the copyright owner and the
public:
"The extension of the copyright owner's reproduction right to cover certain
temporary and incidental reproductions made in the course
of transmissions would
tilt the copyright protection too far in favour of copyright owners. The
proposed exclusion from their reproduction
right of temporary copies made in the
course of transmissions is an important part of the proposed scheme's balancing
of the interests
of owners of copyright and reasonable needs of users for access
in the new communications environment."[201]
The Digital Agenda Act inserted a new section 43A. This provides that the
copyright in a work is not infringed by the "temporary
reproduction of the work
or adaptation as part of the technical process of making or receiving a
communication".
- At present certain copies are made in the carrying out of tasks other than
communications. For example, most computer applications
copy software from
permanent storage[202]
to temporary storage[203]
during normal use. Such copying is
exempted under section 43A. It may be that an implied licence exists according
to the analysis
below.[204]
The Copyright Reform and the Digital Agenda report
observes that copies made to RAM or for the purpose of making material available
to the public are not exempt.[205]
- The author's view is that a broader exemption than the new section 43A would
have been appropriate. An exemption that covers duplications
made in the course
of all uses of material that have been authorised by the owner and require the
creation of temporary duplications
is preferable.[206]
This would promote the
aims of technological neutrality and simplicity.
- A copyright owner may permit another person to do an act within the scope of the
owner's exclusive rights by granting them a licence.[207]
Such a licence may be
express or implied. The licence may be contractual but this is not always
so.[208]
Trumpet Software Pty Ltd v Ozemail Pty Ltd[209]
examined the position of noncontractual
licences.[210]
Trumpet produced software and distributed it as
shareware.[211]
This arrangement constituted a licence binding the recipients of
the software. The Court used the contractual principle of implied
terms,[212]
combined with the written instructions bundled with the software, to ascertain
the nature of the licence:
"The Court considered that the rights granted to shareware distributors or users
fell between a bare licence and a contractual licence.
In effect, it was found
that distributing software as shareware gave rise to certain quasi contractual
rights to the world at large.
In determining what these quasi contractual rights
actually are, the Court adopted a contractual analysis by relying on the
doctrine
of implied contractual terms."[213]
By acting in breach of these terms, Ozemail was outside the scope of the licence
and hence breached Trumpet's exclusive rights.
- Some have argued that an implied licence to make, at the least, transient copies
would accompany the distribution of materials using
a number of digital
technologies.[214]
This is largely academic in relation to electronic
communications of works following the insertion of section 43A. However, it
is
still important in other contexts such as temporary copies made in a computer's
RAM (as discussed above).
- To access or use digital content by the only methods available, one often needs
to make temporary copies. An example of this is use
of word processing
software. For a user to utilise the software, elements of the software are
retrieved from permanent memory (such
a hard disk or CD-Rom and temporarily
stored in the computer's RAM.
A license may be implied in this situation, although,
"Traditionally, Courts have been slow to imply licences or permission to
reproduce
copyright works in the absence of clear expression to do so by the
copyright owner. It remains to be seen how the Courts will deal
[with] the
question of implied licence[s] where material is placed on the Internet in
circumstances where there is often full knowledge
that the material could be
copied"[215]
Pendleton notes that although in the physical realm a person may read a document
or listen to a song[216]
without the need for a licence from the copyright owner,
with digital content some form of licence may be needed.[217]
It is likely that
courts will imply a licence from the act of voluntarily making their material
available in a form that requires
temporary copies to be made so that the
material can be used
The implication rules such as "commercial necessity" and that the term "goes
without saying" support this argument.[218]
- The right to authorise a person to do an act encompassed within a copyright
owner's exclusive rights is also an exclusive right of
the copyright owner.[219]
In Australia, the leading case on the meaning of authorise is UNSW v
Moorhouse.[220]
In that case the High Court held that to authorise meant to
"sanction, approve and countenance".[221]
- In respect of digital content, a number of cases have discussed whether a party,
usually a service provider or carrier of some sort,
had authorised a breach of
copyright. Due to the logistical difficulties involved in monitoring breaches
of copyright by individual
users in a dynamic environment such as digital
communications, copyright owners have tended to pursue service providers and
carriers.
In Religious Technology Centre v Netcom Online Communications
Services the court held that the operator of a bulletin board service
was not
liable, as they were simply conduits for communications between unrelated third
parties.[222]
However in Playboy v Frena[223]
and Sega Enterprises v MAPHIA[224]
the
bulletin board operators were held to be liable, as they had been more than just
passive carriers.
- A number of lawyers and commentators have called for reform in the copyright
liability of service providers and carriers.[225]
The decision in Telstra v APRA
implies that many such entities could potentially be liable for the conduct of
the users of their
systems.[226]
The Australian reports recommended that the
concept of authorisation be used to regulate the liability of users and
carriers.[227]
However, cases such as APRA v Telstra revealed that legislative
amendment is required. In response, the Digital Agenda Act inserted
a new
section 39B that clarifies the position of carries and carriage service
providers (amongst others) in respect of breaches of
copyright by persons using
facilities provided by them. Section 39B provides:
"A person (including a carrier or carriage service
provider) who provides
facilities for making, or facilitating the making of, a communication is not
taken to have authorised any
infringement of copyright in a work merely because
another person uses the facilities so provided to do something the right to do
which is included in the copyright."
As a result, an "innocent"[228]
carrier would not be liable for its client's
breaches of copyright. The scope of the exemption, however, is uncertain. For
example,
is the operator of an Internet cafŽ or an employer who provides
Internet access to its staff a "person ... who provides facilities
for making,
or facilitating the making of, a communication"?
- One element of a number of the copyright owner's rights is the concept of
material form. It is defined in the Act to include "any
form (whether visible
or not) of storage from which the work or an adaptation, or a substantial part
of the work or adaptation, can
be reproduced."[229]
This is sufficiently broad to
include the storage of content already in digital form and also the
digitalisation of other content.[230]
Hence the duplication of a digital text
file or audio track would constitute a reproduction or copy in material form.
Further, the
scanning of an image to create a digital file would probably
constitute a reproduction or copy in material form.[231]
- This corresponds to the technology-neutral approach taken in cases such as
Roland Co v Lorenzo and Sons and Galaxy Electronics Pty
Ltd v Sega Enterprises
Ltd.[232]
From Roland Co v Lorenzo and Sons[233]
it appears that a work saved in
digital code on a computer disk is in material form. The binary code was held
to constitute "a form
of storage from which" the content could "be reproduced".
- If in Roland the printing on paper of a digital word processing file was
considered a reproduction of the literary work contained
in the file, then it is
logical to assume that the scanning of a printed page of text to create a
digital file would also constitute
a reproduction. This same reasoning should
apply to the digitalisation of visual and auditory material, as well as sound
recordings.
- Although most works have an identifiable author,[234]
in some situations the
identification of an author can be a problem. In the digital domain, this poses
two main issues. There may
be material for which no direct human effort can be
identified. An example would be weather information generated by a satellite
and transmitted to the earth.[235]
The author, for copyright purposes, of such
material would probably be the person who primarily made the arrangements to
facilitate
the collection and transmission of the information.
- Second, there may be circumstances in which both the creator and user of digital
technology appear to be responsible for the results.
In Express Newspapers Plc
v Liverpool Daily Post and Echo Plc[236]
the author of the computer software at
issue was held to be the creator of the results from the computer program's use.
In this case
the software was designed to generate various patterns and
sequences. In situations where the technology, such as word processing
software, is akin to a tool being utilised to achieve a user's purposes, the
results of this effort are likely to be owned by the
user. In Roland Co v
Lorenzo and Sons[237]
Pincus J explained that, in the light of Express Newspapers
"obviously the author of the letters and symbols typed onto a word processor
is
the author of the printout".[238]
By contrast, the user of a multimedia work,
although influencing which images and sounds are perceived, would probably not
hold
copyright in any results. It is acknowledged that there will be
intermediate cases where the characterisation is much more difficult.
Indeed,
it is possible that some situations will appear to be cases of joint authorship.
- Jurisdictional issues seriously complicate the use or protection of copyright
material. Although regulated by a number of international
treaties, copyright
law is basically national. Each legislated regime is different and there are
many countries that have not ratified
the primary treaties.[239]
Enforcement
procedures need to be conducted within the confines of private international law
principles where questions such as
residency, place of business and jurisdiction
arise. Such issues are not unique to the digital domain but are considerably
exacerbated
in this context.
- Copyright Reform and the Digital Agenda recommended against defining the concept
of "the public" for copyright purposes.[240]
Following the Digital Agenda Act, to
the public has been defined as "to the public within or outside Australia".[241]
Although this definition does not particularly clarify matters, a degree of
uncertainty in this area of law is justified. The notion
of a copyright owner's
public needs to be fluid to adapt to further technological changes and to the
characteristics of each case.
- Technological solutions play a major role in the commercialisation and
regulation of digital content. In many situations the legal
and commercial
possibilities discussed later are dependent on the technological solutions
below.
- The attempt to find a technological solution is not new. Throughout the history
of copyright law, creators have attempted to ban
or restrict the use of
technologies that facilitate the exploitation of their work and to encourage the
introduction of technologies
that assist them to protect their material.[242]
- Encryption serves two main purposes in the digital domain.[243]
The public key
authentication framework below relies on encryption algorithms for its
identification and authentication functions.
- The second purpose of encryption, also used in the public key system, is to
facilitate private and confidential communications. Encryption
algorithms are
used to "scramble" content that will remain unintelligible until the person with
the appropriate key "unscrambles"
the information.[244]
This allows valuable or
secret material to be transmitted across public networks (such as the Internet)
without concerns about interception.[245]
- A serious issue in modern digital content transactions is anonymity. Retailers
and producers of content are often totally unaware
of the identity of users and
consumers. Although privacy is particularly important, authentication and
identification is vital at
certain points in the transaction cycle. It may be
possible to establish a hybrid authentication scheme where the individual's
identity
is not compromised.[246]
- Electronic payment systems and electronic contracts require a reliable means of
identification. The retailer needs to know that value
is being received and the
user needs assurance that the provider of content is authorised by the creator
and is a credible entity.[247]
One of the most promising means of authentication is the public key system.[248]
This is based on each participant in the system being allocated two "keys".[249]
One of the keys is known as the person's public key and is kept in a publicly
accessible registry. The person must keep the other
key secret. Using a
combination of the two keys it is possible to prove the source, destination and
integrity[250]
of a message.[251]
- As discussed earlier, access controls are likely to provide a key part of the
digital content commercial framework. This is true
in both subscription and
"pay-per-view" regimes. It would also apply to free-access services where the
operator wanted to maintain
some control of its use. This would be relevant
with services that can be customised such as current affairs websites.[252]
Offline products could also be protected in such a manner.[253]
- The most common means of access control are the use of personal identification
numbers or codes (known as passwords).[254]
When combined with a user's name or
other identifier, these allow the operator to control which people may access a
particular system.
However, other possible access controls exist. Significant
research is being undertaken in relation to biometric identifiers.[255]
Other
possible identification systems utilise portable credentials. These are "an
electronically generated packet of digital information
which helps uniquely
identify a participant in a network transaction".[256]
Such information can be
stored on a magnetic stripe or smart card.[257]
Access control can be enhanced through the use of automated callback systems.[258]
First, a user contacts the system into which they want access. If they are an
authorised user, the server disconnects the call and
automatically contacts the
user at their registered location. This has the added advantage that the server
can verify the location
of the user, which provides increased assurance of their
legitimacy.[259]
- An application of the above techniques is the concept of a software envelope.
Currently, most digital content is contained in unprotected
and easily
accessible files. It is possible to "wrap" the content in some form of software
security. The simplest example of this
would be content encrypted with the
recipient's public key.[260]
- Many conventional software programs allow files to be protected with a password
and identifier. Another possibility is that a separate
software envelope be
created for the particular item of content. That is, a creator may embed a
piece of content within a larger
item of software. This may include any of the
above access controls, as well as payment facilities and tracking systems.[261]
The software would be designed so that the digital content is an inseparable
part of the program and is not perceivable other than
by using the software and
following the security measures as designed.[262]
- Digital communications links raise the possibility of a creator tracing their
material during its lifetime.[263]
First, a content provider may watermark
content by adding a piece of code or manipulating the existing code.[264]
No
alteration to the content would be perceivable, as the identifying mark would be
essentially unrecognisable.[265]
For example, in an audio file a minuscule
variation in tone would be beyond the capacity of an ordinary ear to
perceive.[266]
Yet it would not be possible to remove the mark without damaging
the actual content.
- Recently, new businesseses have developed based on online distribution of audio
material.[267]
A purchaser's name and other identifying information would be
attached to the recording.[268]
Although this would not stop piracy per se, it
should discourage copying because each purchased copy (and any derivative copies
made from that purchased copy) can be traced back to the original purchaser. A
similar concept is feasible in visual and text files.[269]
- Each copy or reproduction of the material made available would have a unique
mark. Hence, a content provider would be able to trace
the work if necessary.
Infringing copies could be examined to ascertain which "original" copy was
involved in the breach. Two reproductions
would be able to be compared to
ascertain whether they were originals or copies of each other. With the
networked environment online
tracing and enforcement may be possible. Some
websites already interrogate a user's system and can distinguish the operating
system
and browser software being used.[270]
It is not inconceivable that online
systems could examine the watermarks of digital content stored on a user's
system for unauthorised
reproductions or copies. An intelligent computerised
agent[271]
may be used.[272]
- The WCT provides that contracting nations must legislate to protect Rights
Management Information (RMI) attached to digital content.
This has been
incorporated in the Act by the new sections 116A-D. RMI may be attached using
similar techniques to the marks discussed
above. Information such as the
identity of the copyright owner and the terms upon which a licence to use the
content will be granted
would accompany the material.
- Spoiling refers to the application of physical or logical devices to prevent the
use or perception of digital content without the
authorisation of the owner or
creator.[273]
The early software case of Autodesk v Dyason was an example of
this. There a dongle was used to restrict unauthorised use of the
software.[274]
In the future technologies such as smart cards could be used as part of this
kind of protection system. The WCT and WIPO Phonograms
and Performers Treaty[275]
contained provisions preventing the use, production or commercial dealing with
devices designed to circumvent technological controls.
- Logical devices that have been used in the past include secret coloured charts
and coded sheets. The software would require certain
codes or facts to be
entered from the sheet before the program could be used.[276]
A more advanced
system involves the use of self-deleting codes within the content itself. This
is designed to corrupt the files
in the event of unauthorised copying.[277]
- Another implication of the improved communications links is that a creator may
release content that is incomplete and dependent on
a network system for its
operation or perception. A software publisher may decide to only release a
limited portion of its software
and require users to connect to an online
service, provided by them, to use the software. Further, a publisher may decide
to "rent"
access to an item on software on a time-use basis, instead of
"selling" the software in a form that may be used without time-limitation.[278]
In the author's opinion this would provide the owner with a particularly
effective means to control the exercise of its rights in
the software.[279]
This
concept provides commercially realistic and strong protection for copyright
owners.
- Another variation would be to use portable technologies such as smart cards.
Such cards have developed in recent years and are able
to carry significant
amounts of data and to undertake some computing functions. Sections of data or
even particular functions could
be stored exclusively on a smart card.
Authorised users would be issued with their own personal card. This would mean
that the software
would be unable to run without an accompanying card.
- These techniques could be used with other kinds of content also. With the
design of new software systems, it may be possible to distribute
a film that
could only be viewed and heard while the user was connected to an online
service.[280]
- With any technological security measure, there is the risk that a method of
circumventing the system will be devised.[281]
Some would even say that such
circumvention is inevitable.[282]
Even so, the measures may provide significant
support to the legal and commercial tools used by the content creator to protect
their
rights.
- The most severe problem with pieces of content that are predominantly observed
by the user (ie where the interactivity is minimal)
is that the perceivable
phenomena itself may be recorded and separately stored. If a sound recording,
after the access controls
are satisfied and any decryption has been carried out,
is played using a personal computer, a second program or a physically separate
second device can record the sounds produced. Although using a second device
may result in a loss of sound quality, a piece of sound
recording software
within the same computer would be able to record the sounds in high fidelity.
The second recording of the sounds
involved[283]
produces a copy that is free from
any access controls and encryption. That is because it is the audible tones
that are copied, not
the underlying digital code. However, the second recording
would not be free of any digital watermarks present in the original
recording.[284]
- A similar process can be used to capture visual images displayed by a digital
device. For example, software that records the images
displayed on a computer's
screen[285]
may be used to create a second copy of a digital artwork. Again, the
second record of the image would be purely a record of the
visual phenomena, not
a copy of the original digital code involved. These examples highlight the
extreme difficulty involved in
protecting digital content following its
distribution to the public. A combination of digital watermarking, incomplete
content and
authentication technologies provide the strongest tools available to
a copyright owner for the commercial exploitation of their material.
- The use of security and access controls over digital content may have serious
implications for fair dealing and public debate. At
present, no permission is
necessary where the use of particular materials is within the conceptualisation
of fair dealing.[286]
However, if technological protection measures become a
standard part of the distribution of content, fair dealing may be severely
hampered.[287]
Political and public debate, based heavily on access to
information, may also be hindered.[288]
- In response to the changing realities of the digital domain, a number of new
business paradigms have emerged.
"Content is already
being aggregated, edited, degraded, redesigned, remixed,
repurposed, appropriated and quoted, all without a single cent being paid
to its
original creators, who are having quickly to figure out how to derive an income
from it without having to rely on uncollectable
royalties or licence fees. Some
won't survive, others are coming up with new kinds of highly rewarded, dynamic
partnerships with
commercial entities."[289]
At present these compete with conventional business models in many industries.
This will continue regardless of the recent the legislative
changes discussed
below. That is because these new business models are a response to the inherent
nature of digital content.[290]
These models are techniques to commercialise
content that is portable, easily manipulated and transported, difficult to trace
and
difficult to control once distributed.
- In the absence of satisfactory or favourable legislation, businesses tend to
protect their interests using contractual arrangements.
This is true in
relation to copyright in the digital domain.[291]
Warranties and indemnities in
respect of copyright breaches may become more common. Combined with more
effective tracing and enforcement
techniques highlighted above, this may allow
copyright owners to design a business solution that provides them with a
satisfactory
return.
- It should be noted here that there are non-economic motivations for creating
digital content. For example, authors may simply wish
to educate the public or
disseminate their views on a particular issue. Content may be created for
independent purposes. The World
Wide Web has developed as a predominantly freeaccess
forum showing that such altruistic[292]
motivations do inspire the creation
and making available of significant quantities of digital content.[293]
- An early model that is evident in commercial websites is the subscription access
regime.[294]
Tony Sarno commented that "[e]ventually, if the information is truly
valuable, much of it will end up behind a password."[295]
Businesses that offer
valuable services, for example an archive of digitalised photographs, are able
to charge for the right to
use the service. Most of these regimes, especially
the older ones, tend to be time-based systems. For example, many adult content
sites require the payment of a monthly fee for access[296]
and many ISPs have an
hourly costing system.[297]
More direct user pays systems are beginning to
emerge, where each use of a service incurs a small cost.
- A logical development of the access concept is the "micropayment" system. With
an efficient and quick payment mechanism, a digital
content owner would be able
to sell tiny pieces of content (or tiny periods of access to a piece of content)
at a small cost.[298]
That is, a stock market information service could charge
people 0.1 cents per stock price each time they checked the state of the
market.
With such a small cost, the convenience to a consumer would provide an
attractive marketing prospect. There would not be
large pressures to protect
one's copyright, as such information is largely news-based.[299]
- Another example of this is the Australian Financial Review, where certain
articles can only be viewed by paying a small fee.[300]
Site operators will need
to protect the copyright in their content to maintain the uniqueness of their
site. However, if significant
market share and brand recognition could be
established, as long as the "micropayment" remained competitive it should be
possible
to conduct a profitable service.
- There are some problems associated with requiring users to pay for access to
digital content. Tony Sarno identifies a number of them:
"Most users think that they are already paying to reach your site, even if it's
free. . . . People get stroppy when they're asked
to pay for something they've
received free. . . When people start paying for a service, their expectations
are higher. . . When customers
pay, they assume the right to phone support
whether you provide it or not. . . . It costs money to charge visitors, whether
you're
using basic transaction systems based on credit cards or ones using
micropayment engines."[301]
It is possible to design a service so as to avoid some of these problems. For
example, it is easier to apply charges to a newly
created site that to an
existing one.[302]
- Digital age businesses are adapting well-known and common schemes like the
advertising model.[303]
A website may be available to view and use for free. At
the same time, advertising content is displayed for which the site operator
receives a payment.[304]
This is a digital age version of the "consumer is the
product" notion underlying present broadcast regimes.[305]
- "It is often argued that the economy of attention - not information - is the
natural economy of cyberspace. If this is the case .
. . the source of
commercial value online will be people's attention, not the content that
consumes their attention. . . In other
words, content providers may soon have to
pay their audience, not the other way around."[306]
- A number of variations are possible, such as content transmitted to people with
a promotional message included. The various email
news services are an example
of this.[307]
As this is a demonstration of the first to market model examined
below, there is not a significant concern with protection of their
copyright.
However, there is a risk that a rival operator (using first firm's material)
could set up a similar service with different
promotional messages attached.[308]
- In a less concentrated and focussed sense, many websites are an example of the
promotional model.[309]
They contain information about a person or business, the
services offered and sometimes an example of these for the public to examine.
Significant amounts of intellectual property are often given out by such
organisations in the hope of attracting custom.[310]
Law firms supply many of
their current awareness materials for free with the aim of attracting future
clients.[311]
Digital established the Alta Vista search engine, originally, to
demonstrate the power of its computer equipment.[312]
- Another concept from traditional marketing parlance that has been applied in the
digital domain has been the electronic community.
Early versions of this
concept were online shopping malls. A number of Internet search engines have
evolved into "portals" - entry
points that can be customised by users where
news, entertainment, email and other services are available.[313]
In an attempt
to generate consumer loyalty and attract new interest to their products, some
businesses are creating digital communities
that provide industry-related
information and services through their websites.[314]
For example, Toyota has set
up its electronic Internet community with product information, access to
motoring journals and reviews,
discussion forums and feedback facilities.[315]
Although many "fan sites" have been closed and prosecuted by copyright holders,
some creators have encouraged their audiences to
share materials using the
Internet. This can build the community of the creator's fans and may not
adversely affect ratings or merchandise
sales.[316]
- Other organisations "give" away digital content to attract users to their
products, to increase market share and to attempt to dominate
an industry. The
advantage of such a strategy is that if a business can establish a standard or
at least a dominant market share
amongst consumers, they can offer applications
to businesses to better serve those consumers who have the related software.
"Allowing
access to valuable intellectual property free of charge lies at the
heart of the Net. Both Netscape and Microsoft allow their web
browsers to be
downloaded and used for free, and several other software companies give away
their applications online. Many Web
sites offer users free and unrestricted
access to complex search engines, applications and database management
systems."[317]
Both Microsoft and Netscape offer, commercially, server software
that corresponds with their freely available browsers and Adobe
offers
publishing software to complement its freely available document reading
software.[318]
One should not underestimate the importance of recognition and credibility.[319]
In the particularly intangible realm of digital content, consumers and
businesses will tend to rely on those with whom they have
had previous dealings
or those who have a public credibility.[320]
This in itself will encourage
content owners to establish a visible business and will assist them to maintain
profitable trade in
their content.
- The "information is an activity" concept illustrates another new business
model.[321]
In the digital domain the services provided by a business will become
the dominant value provided to an end-user. Businesses that
provide an
attractive service will be able to capture a profitable market, using content as
one of their tools. Some content will
be shared between competitors and some
will be made available for free to the public. This is because these businesses
will distinguish
themselves through the value they add by the services they
provide. An example of this business model would be a company that provides
its
software to the public for free then sells their services as consultants to
customise and implement the software.
- Collection societies emerged in the physical realm to protect creators and to
streamline the use of and remuneration for copyright
materials. Similar
societies may emerge in the digital domain.[322]
With the efficiencies available
using electronic payment and communications systems, some form of collection
society representing
the owners of digital content may be successful.
- This could include the implementation of real-time automated licensing,
distribution and authorisation systems for digital content.[323]
Technology would
facilitate a rights management system where the owners[324]
could issue short
term, narrow scope licences to use particular items of content. With
instantaneous links and "micropayments" this
may be possible to implement in a
commercially viable manner. Technological developments, instead of confounding
copyright owners'
commercial exploits, may enable the evolution of the licensing
regime so that direct, efficient and inexpensive licences may become
a
reality.[325]
- Electronic commerce is a much used but little understood term. In this context
it refers to the conduct of business transactions
using electronic technologies.
The commercialisation of copyright in the digital domain should be seen in the
wider context of the
development of electronic commerce.
- Business may seek to simply modernise their operations using digital
technologies and methods.[326]
However, it is possible that these, of themselves,
may revolutionise the industries involved. A number of sectors are now selling
traditional copyright-protected material using electronic methodologies.[327]
Where the content is already in digital form, significant cost savings may be
available by circumventing physical delivery channels.[328]
Some software
companies now directly deliver their content via Internet transmissions.[329]
Although this does not avoid the need for copyright protection, it does allow
lower pricing structures which can reduce the incentives
to breach copyright.
A further possible business model is the direct selling system.[330]
Although not
new, it is particularly suited to digital age commerce. Instead of relying on
wholesalers and retailers, musicians
are able to transmit their products
directly to their audience.[331]
This allows significant cost savings and may
strengthen performer-audience relationships. Although copyright in the content
may
still need enforcement, this is a viable option. Where a strong direct
relationship can be established, the public may be unlikely
to acquire the sound
recordings from another source.
- In the rapidly changing market for digital content, the party who is the first
to provide a particular type of content has a natural
advantage.[332]
They are
able to capitalise on the inherent value of early release, regardless of the
steps taken to enforce their copyright. This
is especially evident in news
services.[333]
However, in many industries this is not a viable business model.
The longevity of any product of this type is limited but where
rapid sequential
release is possible, a commercial return is still available.
- One possible solution that has been utilised in other contexts is the creation
of an industry levy scheme.[334]
This would involve the collection of a levy from
end-users of digital content charged upon some aspect of their use.[335]
A
similar system was set up at one point in relation to blank audio tapes.
However this particular scheme was declared invalid by
the High Court in
Australian Tape Manufacturers Association Ltd v Commonwealth.[336]
- As discussed above, the Act protects cinematograph films at present. This
includes conventional films and at least some interactive
digital content.
However, with interactive non-linear content there are doubts as to the extent
of protection available. The Copyright
Law Review Committee recommended that
the film category be expanded and renamed "audio-visual" works.[337]
This was one
of the issues left outstanding from the Copyright Convergence Group's report
Highways to Change - Copyright in the
new communications environment and should
be considered further.[338]
- The issue of a broadly-based exemption for transient copies is considered
above[339]
In the meantime, parties may be able to rely on an implied licence, at
least to the extent that the making of the transient copy
was necessary to
utilise the digital content by the only practical means available.
- At this point it is not suggested that any amendments be made in regard to the
issue of computer assisted or generated material.
Whilst this may need to be
reconsidered in the future, at present the issue is better dealt with by the
general concepts of creation
and joint creation, as well as the capacity of
parties to regulate their affairs with licences and contractual arrangements.
- Some have suggested a radical overhaul of the copyright regime and the adoption
of a new approach.[340]
As with many legislative regimes in place, the copyright
law has evolved over time in a relatively piecemeal fashion. The current
focus
on technology-neutral drafting is to be supported but it would be worthwhile to
redraft many existing provisions to reflect
this approach. Peter Treyde, a CLRC
secretariat director, has been reported as saying that a likely solution would
be new laws with
broad and open definitions of copyright materials, so that, in
the future "nothing worthy of protection would fall between the cracks".[341]
- There are a number of archaic distinctions and categorisations made in the Act.
For example one must decide whether an item fits within
one of the specific
categories before it may be granted protection. In the digital domain many such
distinctions are inappropriate,
as is the requirement that a piece of content
must fall within one of them before gaining protection. It would be more
appropriate
to redraft the Act to focus on the nature of the content observed or
perceived by the user. For example, one could reduce the number
of categories
to visual works, aural works and sensual works.[342]
- Other areas of the Act that should be addressed are the communication or
presentation rights. At the moment there are distinctions
drawn between a range
of physical and digital means of providing content. A general right of making
available and providing or distributing
could replace the existing rights.[343]
However, the Copyright Convergence Group concluded that distinctions between
certain actions like performance and transmission should
be maintained.[344]
The
right to repeat or reproduce any existing presentation of a work would remain
with the copyright owner.
- The digital domain has begun to seriously challenge the copyright system, both
in Australia and abroad. We cannot simply rely on
legalistic interpretations
because technological developments may marginalise copyright as a force in
creative and commercial affairs.
- Dramatic growth in broadband communications, convergence of technology systems,
digitalisation of content and the globalisation of
human interactions have
changed the context within which copyright operates. Copyright exists to
regulate the use of content and
to balance the rights of creators and the
general public. In the digital domain, there is some uncertainty whether
copyright is
the most suitable regime to undertake this function.
- Due to the nature of digital content, a combination of commercial, technological
and legal solutions will be utilised to manage copyright
material. Owners need
to explore the potential for the application of technological solutions that
substantially discourage or even
prevent unauthorised use and dealings. Digital
watermarks and content that relies on network access provide two of the most
promising
examples of these.
- Business entities can be expected to adapt existing schemes and to develop new
ones to deal with the challenges of new environments.
This has been and will
continue to be the case in the context of digital copyright. Some of the
business solutions are such that
they would be successful in the absence of
technological or legislative developments. However, most of them rely on
technological
measures for their efficacy. Access and advertising based regimes
provided the first generation of digital content enterprises.
Evolution of
cross marketing, first-to-market and service focussed firms can be observed at
present. In the future, electronic
commerce and virtual community centred
organisations will probably dominate.
- The legislative amendments flowing from the Digital Agenda Act will not, of
themselves, solve the dilemmas facing regulators and copyright
owners. However,
measures such as the new technology-neutral communication rights will provide
greater certainty for all and more
flexibility for copyright owners. Steps
should be taken to clarify the treatment of non-communication transient copies
and audio-visual
material for the same reasons.
- The argument of this paper is that, even with the recent amendments, copyright
will have a reduced role in the future of digital content.
That is not to say
that the end of copyright is nigh - in fact, to paraphrase Mark Twain, rumours
of its death have been greatly
exaggerated.[345]
A combination of technological
measures and new business paradigms will facilitate the use and
commercialisation of content in the
digital domain. Copyright will continue to
play a role in this task, albeit a reduced one.
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[1]
The phrase digital domain is used in this paper to refer to the phenomena of
this era that most forms of information and content,
apart from those that are
demonstrably physical, can be represented in digital code.
[2]
Ian McDonald, "Digital publishing and copying: issues for authors and
publishers" at 87
[3]
John Perry Barlow, The Economy of Ideas; Lewis Lee & J Scott Davidson,
Intellectual Property for the Internet at 77
[4]
Robyn Coyle, "Copyright & Cyberspace - Divergent Notions"
[5]
Virtual reality has been described by some as an interactive world or a
"consensual hallucination" - Nick Weston, "Copyright and
Virtual Reality
Technology: A Bandaid on the Bleeding Edge" at 72
[6]
Antonio Mille, "Copyright in the Cyberspace Era" at 570
[7]
above
[8]
Dr Andrew Christie, "Towards a new Copyright for the New Information Age" at
146; see also Copyright Convergence Group, Highways
to Change - Copyright in the
new communications environment at 4
[9]
In the context of text files, the Rich Text Format (RTF) has become a de facto
standard for some purposes.
[10]
Angela Bowne, "Trade Marks and Copyright on the Internet" at 135. As
discussed below, this has serious implications for copyright
owners'
reproduction or copying rights.
[11]
All references to legislation should be taken to be references to the
Copyright Act 1968 (Cth) unless otherwise annotated.
[12]
However, computer software posed some problems when it first received
protection under the copyright law - see below
[13]
Compact Disc
[14]
Natalia Yastreboff, "Copyright for online databases on the Internet - Part I"
at 36 [quoting from the Highways to Change - Copyright in the new communications
environment report]
[15]
See CNet news feature, "When World Collide".
[16]
McKeough and Stewart at [9.3]
[17]
Highways to Change - Copyright in the new communications environment at 3,
citing the 1992 OECD report, Telecommunications and Broadcasting:
Convergence or
Collision
[18]
(1997) 37 IPR 495
[19]
(1997) 37 IPR 495 per Sheppard P at 512. Such a device will dominate our
communication, information and entertainment activities in the near future.
The
capacity of modern personal computers to fulfil entertainment, communication and
information functions is a precursor of the
future impact of a Central
Information Appliance.
[20]
Shane Simpson, "Moving Towards Copyright Control on the Internet" at 200
[21]
Wright & Greenleaf, "Law, Convergence and Communicative Values on the net"
[22]
Copyright Convergence Group report Highways to Change - Copyright in the new
communications environment; Copyright Reform and the
Digital Agenda (Proposed
Transmission Right, Right of Making Available and Enforcement Measures)
Commonwealth Discussion Paper
[23]
Such as a broadly defined category of audio-visual material, transient copies
(other than those in the course of communications),
jurisdiction and treatment
of computer-generated works.
[24]
Although strictly speaking the term is a misnomer, it captures the concept of
a cross-content presentation. The media involved (the
form of presentation or
storage) is actually singular (typically a CD-Rom), it is the contents of the
storage media that have multiple
characteristics.
[25]
Jenny Zaverdinos, "Legal Aspects of Multi-media - Enforcing Copyright" at 151
[26]
from the preamble to the WCT
[27]
bits per second (bps) is a measurement of the speed of a flow of data across
a communications link
[28]
This is based on a land transport analogy. Current communications are
likened to a narrow street and are compared to the future
systems being a broad
highway (also known as the superhighway). The label broadband is also based on a
pipeline analogy. Previous
generations of communications links have been
likened to a narrow pipe through which only small amounts of data can be
transported
at any one time.
[29]
See Ozemail <www.ozemail.com.au>
[30]
Copyright Reform and the Digital Agenda (Proposed Transmission Right, Right
of Making Available and Enforcement Measures) at 3.48
[31]
Howard Seigel & David Stein, Music Performance Rights on the 'Net - Continued
Uncertainty Over 'Cybercasting
[32]
Video on demand is considered to be a service that will encourage mass-market
acceptance and use of Internet-type technologies (known
colloquially as a
"killer application").
[33]
Ralph Oman, "New Global Treaties Protect Copyrights Online - Major revision
of Berne gives new rights to creators and performers";
Angela Bowne at 135;
Shane Simpson, "Moving Towards Copyright Control on the Internet" at 200; Ian
McDonald at 87. For this reason,
alternative business models such as those
discussed below may become the standard means for creators ensuring an adequate
return
from their endeavours. It appears that copyright will only be able to
provide partial protection to such creators.
[34]
Adele Ferguson and David James, "Globalisation, Ready or Not"
[35]
In times past local producers had inherent advantages in the servicing of
their domestic market. Most local producers have recognised
the need to compete
with international firms to maintain market share and profitability.
[36]
At least few natural or physical barriers
[37]
Mark Davison, "Parallel Importing of Copyright Material in a Digital Age: why
it should be lawful and why it may never be" at 271
[38]
Adele Ferguson and David James; Australian Taxation Office, Tax and the
Internet; Joint Committee of Public Accounts and Audit,
Internet Commerce - to
buy or not to buy
[39]
This refers to observations of each of the five senses - sight, hearing,
smell, touch and taste.
[40]
ie in binary code
[41]
see below
[42]
As discussed above, the copy of digital content is of identical quality. The
copy can be made with significant expense or effort
and is particularly
difficult to identify and police. Finally, practical advantages of using the
original item, such as the convenience
of a published book, do not occur in the
digital domain.
[43]
John Jackson and Campbell McConnell, Economics Chapter 26 "Price and output
determination: Pure competition"
[44]
James Lahore, Gerald Dworkin & Yvonne Smyth, Information Technology: The
Challenge to Copyright at 1-2
[45]
There are eight basic categories of works and non-works dealt with by the
Act. Part III deals with literary, dramatic, musical
and artistic works; Part
IV deals with sound recordings, cinematograph films, broadcasts (sound and
television) and published editions
of works. To receive copyright protection,
material must be able to be categorised into one of these.
[46]
See Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 37 IPR 462;
discussed in "Other digital material" below
[47]
[1916] 2 Ch 601 at 608
[48]
See "Other digital content" below
[49]
L Meville, "Computer Software and the Relevance of Copyright" at 360
[50]
A literary work was defined to include "a written table" and the Act provided
that "writing" meant "a mode of representing words,
figures or symbols in a
visible form": section 10(1).
[51]
(1983) 50 ALR 581 (first instance)[1947] ArgusLawRp 3; , (1984) 53 ALR 225 (Full Federal Court)
and [1986] HCA 19; (1986) 161 CLR 171 (High Court)
[52]
the "source" code
[53]
the "machine readable code" or "object" code
[54]
[1947] ArgusLawRp 3; (1984) 53 ALR 225 at 235 and [1986] HCA 19; (1986) 161 CLR 171
[55]
[1986] HCA 19; (1986) 161 CLR 171 at 184. This differs from the Full Federal Court reasoning
that the object code was a translation of the source code. This approach
was
strongly reasoned and would have provided a sound resolution of the dispute as
well as protecting the object code. The legislative
amendments cause a similar
result (see below).
[56]
This was convened in response to Beaumont J's first instance decision in
Apple Computer - see McKeough & Stewart at [9.12]
[57]
section 10(1) Copyright Act
[58]
section 10(1) (as it currently reads). The original longer and more
technology specific definition was replaced by this definition by the Digital
Agenda Act.
[59]
[1992] HCA 2; (1992) 173 CLR 330
[60]
McKeough and Stewart at [9.13]
[61]
It also tested for the dongle signal constantly during the program's
operation and would cease operations if the appropriate signal
was not received
[62]
The sequence was 128 bits in length
[63]
at 347
[64]
per Mason CJ, Brennan & Deane JJ at 336
[65]
at 344
[66]
at 347
[67]
[1996] FCA 460; (1997) 37 IPR 436
[68]
Copyright protects the manner in which a creator expresses a particular idea
but will not protect the idea itself. This is known,
in respect of software
copyright, as the "look and feel" issue. See for example Wheland Associates v
Jaslow Dental Laboratory Inc
[1986] USCA3 976; (1986) 797 F 2d 1222; Digital Communications
Associates Inc v Softklone Distributing Corp (1987) 10 IPR 1; Apple Computer Inc
v Microsoft Corporation (1992) 24 IPR 225
[69]
(1996) 33 IPR 194
[70]
[1996] FCA 460; (1997) 37 IPR 436
[71]
(1997) AIPC 91-350. Pseudocode is a plain English description of the tasks
that a particular set of computer code carries out.
[72]
Colin Golvan "Court rules out reliance on pseudocode in computer case" at 85
[73]
As merely an idea, the pseudocode does not merit copyright protection in its
own right.
[74]
see the section on written materials below
[75]
This is subject to the threshold tests of creativity, authorship and lack of
publication.
[76]
(1997) 37 IPR 462
[77]
Using mapping functions, the computer would produce an image of the user's
character in the setting that corresponded to whichever
scene the user had
manoeuvred to at that point in time.
[78]
ie the instructions
[79]
ie the data
[80]
To what extent is the result of the combination of the user's interaction and
the program itself the creation of the programmer
and to what extent is it the
creation of the user?
[81]
News Section: National Reports [1997] 9 EIPR at 232
[82]
Denise McBurnie, Anthony Muratore & David Shearman, "Copyright update" at 22
[83]
See "Audio-visual material" below.
[84]
Lewis Lee & J Scott Davidson at 78-9
[85]
[1991] FCA 617; (1991) 22 IPR 245 (see below)
[86]
in the section headed "software"
[87]
[1992] HCA 2; (1992) 173 CLR 330
[88]
The code was represented by a 128-bit sequence - a digital sequence of 1's
and 0's.
[89]
Albeit a rather longer sequence of 1's and 0's, it is no different in nature.
[90]
However, the code in the dongle was considered by the majority to be a part
of a larger piece of computer software. It is uncertain
whether a digital file
of a visual image could be considered to be part of a larger piece of software,
such as package of commercial
art software.
[91]
at 253
[92]
[1982] Ch 119
[93]
References by the court to the literary enjoyment of works evidences the
underlying attitude of the court here.
[94]
Cf Apple Computer Inc v Computer Edge Pty Ltd - at first instance and in the
High Court (see above)
[95]
See the cases involving Total News and Ticketmaster: Angela Bowne above.
[96]
Editor - Shetland News, What the judge said in "The Shetland Times" Case;
News Section: National News [1997] 2 EIPR at 49
[97]
That is, when viewing the defendant's site, a person would see a border
created by the defendant and inside this a story actually
residing on the server
of the plaintiff.
[98]
The plaintiff also brought actions under heads of misrepresentation and
passing off.
[99]
Editor - Shetland News What the judge said in "The Shetland Times" Case.
[100]
Lewis Lee & J Scott Davidson at 59
[101]
See below under the heading "Reproduction and copying"
[102]
as opposed to a direct examination of the means used by the artist
[103]
This may be so even where the second programmer has seen the observable
phenomena produced by the first program and has sought to
imitate it in their
program.
[104]
Whelan Associates v Jaslow Dental Laboratory Inc [1986] USCA3 976; (1986) 797 F 2d 1222;
Broderbund Software Inc v Unison World Inc (1986) 7 IPR 193; Digital
Communications Associates Inc v Softklone Distributing Corporation (1987) 10 IPR
1
[105]
section 10(1)
[106]
see above "Other digital material"
[107]
Media Technology Group, Allen, Allen & Hemsley, "Current Information
Technology Issues in the Pacific Rim" at 20
[108]
News Section: National Reports [1997] 2 EIPR 37 at 38
[109]
News Section: National Reports [1997] 9 EIPR 229
[110]
News Section: National Reports [1997] 9 EIPR at 232
[111]
(1995) 4 SSA 229 (TPD) [cited in News Section: National Reports [1997] 2
EIPR at 39]
[112]
Multimedia is content containing elements of more than one type of material,
such as both text and audio-visual) - see above under
the heading "Convergence"
[113]
News Section: National Reports [1997] 9 EIPR at 232. It can also be said
that the images themselves were only created immediately
prior to them being
presented by the computer itself.
[114]
No 95 C 0719, ND Ill May 28, 1997 [Cited in Meeka Jun, "Mortal Kombat over
Digitized Images in Video Games"]
[115]
The filmed sequences were later digitalised and incorporated in the computer
game. Further, the game would probably receive protection
as a computer program.
See Meeka Jun above
[116]
section 10(1)
[117]
Thomton Hall v Shanton Apparel (no 2) (1988) 13 IPR 436; Amalgamated Mining
Services v Warman International [1992] FCA 542; (1993) 24 IPR 461; Interlego AG v Croner Trading
Pty Ltd [1992] FCA 624; (1993) 25 IPR 65
[118]
Lewis Lee & J Scott Davidson at 79
[119]
ie using photocopying technology
[120]
section 10(1)
[121]
(1984) 2 IPR 456
[122]
This appears to follow the same approach as the early cases on literary
works (see above) which focussed on works that provided
literary enjoyment and
pleasure.
[123]
at 465
[124]
See Cuisenaire v Reed [1963] VicRp 96; [1963] VR 719; Burke & Margot Burke Ltd v Spicer's
Designs [1936] 1 Ch 400; Komesaroff v Mickle [1987] VicRp 60; (1986) 7 IPR 295
[125]
That is, if a digital image or visual creation is "artistic", it should
receive protection under the Act.
[126]
see under "material form" below
[127]
Greenfield Products v Rover-Scott Bonnar (1990) 17 IPR 417; Wham-O
Manufacturing Co v Lincoln Industries Ltd [1985] RPC 17. It may be interesting
to examine whether three-dimensional rendering using graphics software and
virtual reality systems could constitute
sculptures. Unfortunately that
question is beyond the scope of this paper.
[128]
at [624] - quoting from the Copyright Act 1905, section 4
[129]
Concise Oxford Dictionary
[130]
section 10(1)
[131]
section 10(1)
[132]
The section makes no reference to the aesthetic qualities of the sounds.
There is not requirement for a certain artistic or creative
quality.
[133]
See below under the heading "Material form"
[134]
section 87.
[135]
The basic right given to the communicator of creative material is to prevent
the reproduction of the broadcast or publication: sections
87 & 88.
[136]
Literary, dramatic and musical works - reproduction in material form,
publication, performance in public, communication to the public,
commercial
rental arrangements (in limited circumstances) and to make an adaptation:
section 31(1). Artistic works - reproduction
in material form, publication,
communication to the public: section 31(1). Sound recording - copying, causing
the recording to be
heard in public, communication to the public and commercial
rental arrangements: section 85(1). Cinematograph film - copying, causing
the
film to be heard and seen in public, communication to the public: section 86.
Television and sound broadcasts - to make a film
of a television broadcast, to
make a sound recording of a sound broadcast and to re-broadcast it or
communicate it to the public
otherwise than by broadcasting it: section 87.
Published editions of literary, dramatic and musical works - to make a facsimile
copy:
section 88.
[137]
sections 36(1) & 101(1)
[138]
see above
[139]
ie from source code to object code
[140]
Duplication will be used to refer to both copying and reproduction rights,
where they can be considered together.
[141]
Copying is defined in the limited context of cinematograph films (section
10).
[142]
Lewis Lee & J Scott Davidson at 77
[143]
Concise Oxford Dictionary
[144]
see above
[145]
See "Material form" below
[146]
works & sound recording - section 29(1)(a)&(c)
[147]
cinematograph film: section 29(1)(b)
[148]
Similar to the new right to "make available to the public" discussed below
under the heading of 'Transmission and making available",
material can be
considered to be published regardless of whether people have read or viewed it.
[149]
However, it may also be characterised as the provision of a single
reproduction or copy. This would depend on the court's conclusions
as to the
extent and nature of the operation.
[150]
But see, Rank Film Production v Colin S Dodds (1983) 2 IPR 113 (discussed
below)
[151]
[1997] HCA 41; (1997) 38 IPR 294 - see below for a more detailed discussion of APRA v
Telstra, in relation to the broadcast and transmission to a diffusion service
rights
[152]
at 303
[153]
at 303
[154]
ie the owners of the businesses playing music on hold to their clientele
[155]
at 303-4
[156]
at 303
[157]
(1985) 7 IPR 160; This had been done to demonstrate the capabilities of the
systems being offered for sale.
[158]
(1964) 5 FLR 41. The court also discussed the process by which someone
became a member of the relevant audience.
[159]
(1983) 2 IPR 113
[160]
section 27(1)
[161]
ie heard and/or seen
[162]
sections 85 & 86
[163]
section 27(2)
[164]
section 27(3)
[165]
section 10(1)
[166]
However, it may be been transmitted to "to the public" in the light of
Telstra v APRA and Rank Film Production v Colin S Dodds.
[167]
(1993) 26 FCR 131 at 139 [cited in Copyright Reform and the Digital Agenda
at 4.8]
[168]
section 27(3).
[169]
section 25(1). That is not to say that they are limited to broadcasts made
to conventional radio and television devices. Transmissions
received by
telephones have been held to constitute broadcasts for the purposes of the
Copyright Act 1968 in Telstra v APRA.
[170]
Replaced by the communication right by the Digital Agenda Act.
[171]
"'Broadcast' means a communication to the public delivered by a broadcasting
service within the meaning of the Broadcasting Services Act 1992;"; "'Sound
broadcast' means sounds broadcast otherwise than as part of a television
broadcast" and "'Television broadcast' means
visual images broadcast by way of
television together with any sounds broadcast for reception along with those
images": section 10(1).
[172]
see section 87
[173]
[1997] HCA 41; (1997) 38 IPR 294 - see above in regard to the discussion of APRA v Telstra
and the concept of "to the public"
[174]
Such as where callers to Telstra offices were placed on hold and music was
played to them.
[175]
The offending conduct occurred well before the commencement of the Digital
Agenda Act.
[176]
Per Dawson & Gaudron JJ at 300 & 304, Toohey J at 304, McHugh J at 316,
Kirby J at 333-4 and 340.
[177]
Media Technology Group, Allen, Allen & Hemsley at 8-9
[178]
Simon Gilchrist, Telstra v APRA - Implications for the Internet
[179]
Ozemail press release 9 June 1998 <www.ozemail.com.au>; "OzEmail settles Net
dispute", The Australian newspaper, 10 June 1998 at 28
[180]
Copyright Reform and the Digital Agenda 4.38
[181]
see above
[182]
Highways to Change - Copyright in the new communications environment
recommendation 1, para 1.3 [at page 9]; Yee Fen Lim "Internet
Service Providers
and Liability for Copyright Infringement through Authorisation" at 192
[183]
Copyright Reform and the Digital Agenda (Proposed Transmission Right, Right
of Making Available and Enforcement Measures) at 4.15
[184]
WCT
[185]
Copyright Reform and the Digital Agenda at 4.11
[186]
Copyright Reform and the Digital Agenda at 4.13 and Appendix three at 3.7
[187]
This is because optical technologies use light rather than electrons in the
carriage of the signal or data.
[188]
Natalia Yastreboff, "Copyright for online databases on the Internet - Part
I" at 41
[189]
Copyright Reform and the Digital Agenda at 4.84
[190]
Howard Seigel & David Stein above
[191]
Lewis Lee & J Scott Davidson at 135
[192]
Ie the sound recording as a whole, or substantially as a whole, object.
Obviously small, component sound recordings are transmitted,
saved and played.
[193]
Lewis Lee & J Scott Davidson at 136
[194]
ie by clicking upon the icon with a mouse
[195]
ie an icon
[196]
Michael Pendleton above
[197]
[1993] USCA9 1079; 991 F 2d 511 (2nd Cir 1993) [cited in Ronald Katz & Lateef Mtima,
"Uncertainty Reigns in software cases"]
[198]
Ronald Katz & Lateef Mtima [quoting from the judgement - [1993] USCA9 1079; (1993) 991 F 2d 511
at 518-9]
[199]
Copyright Reform and the Digital Agenda at 4.54
[200]
Copyright Reform and the Digital Agenda at 3.40
[201]
Copyright Reform and the Digital Agenda at 4.56
[202]
ie the hard disk
[203]
ie RAM memory
[204]
Stephen Peach & Mia Garlick above
[205]
Copyright Reform and the Digital Agenda at 4.57-58
[206]
Eg RAM copies of computer software on a user's system.
[207]
section 36 and 101. Furthermore, a creator has the right to assign their
rights under the Act to another person: section 196(1).
This has the practical
effect of a permanent licence with a delegated power for the assignee to grant
licences.
[208]
A copyright owner may utilise a shrinkwrap licence, where the terms of the
licence are wrapped in plastic packaging and are only
available to the consumer
after purchasing the product. Although under general contract law the terms must
be agreed between the
parties prior to the purchase, as opposed to being
unilaterally imposed by one party later, ProCD Inc v Zeidenberg [(1996) 86 F.3d
1447 (7th Circuit) - cited in Copyrites No 24 and by in Angela Bowne at 141]
held that a shrinkwrap-type licence is valid.
[209]
(1996) 34 IPR481
[210]
Colin Golvan, "Trumpet - a comment"
[211]
That is, they had provided copies to the public for the purpose of
evaluation and required that, should a consumer wish to continue
using the
product after a trial period, they would make a payment to the company.
[212]
Michael Pattison & Moana Weir, "First case on the legal protection of
shareware - Trumpet v Ozemail" at 67
[213]
Media Technology Group, Allen, Allen & Hemsley "Current Information
Technology Issues in the Pacific Rim"at 17
[214]
Lewis Lee & J Scott Davidson at 84
[215]
Media Technology Group, Allen, Allen & Hemsley, "Current Information
Technology Issues in the Pacific Rim" at 14
[216]
At least as long as they are not performing it.
[217]
"Reforming Copyright for the Digital Age - Everyone's Horse on the Wrong
Course"
[218]
BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1910] ArgusLawRp 71; (1977) 16 ALR 363; JW
Carter & DJ Hartland, Contract Law in Australia
[219]
Section 13(2) provides "the exclusive right to do an act . . includes the
exclusive right to authorise a person to do that act".
[220]
(1975) 133 CLR 1 <www.austlii.edu.au/au/cases/cth/high_ct/133clr1.html>
(references are to paragraph numbers in the AUSTLII publication.
[221]
Gibbs J at para 10, Jacobs J (with whom McTiernan ACJ agreed) at para 9
[222]
(1995) 33 IPR 132
[223]
(1993) 839 F Supp 1552 (MD Fla) [cited in Angela Bowne at 140]
[224]
(1994) 857 F Supp 679 (ND Cal) [cited in Angela Bowne at 140]
[225]
Beth Lipton, "Net Music pirates face lawsuits"
[226]
Stephen Loughnan at 19
[227]
Copyright Reform and the Digital Agenda at 4.88; Highways to Change -
Copyright in the new communications environment at 27
[228]
IE unaware of and not involved in the breach.
[229]
section 10(1)
[230]
Lewis Lee & J Scott Davidson at 79
[231]
Lewis Lee & J Scott Davidson at 79; but see the draft CLRC report on the
Protection of Computer Software [cited in Copyright
Convergence Group, Highways
to Change - Copyright in the new communications environment at 23]
[232]
See the discussion of the WIPO proceedings under the heading "Transient
copies" in the section "Possible legislative changes"
[233]
[1991] FCA 617; (1992) 22 IPR 245
[234]
or group of authors
[235]
see McKeough and Stewart at [9.21]
[236]
[1985] FSR 306 [cited in Roland at 252]
[237]
[1991] FCA 617; (1991) 22 IPR 245
[238]
at 252
[239]
ie the Berne Convention for the Protection of Literary and Artistic Works
1886 and the WCT
[240]
Copyright Reform and the Digital Agenda at 4.41
[241]
Section 10(1).
[242]
John Chesterman & Andy Lipman at 85
[243]
Lewis Lee & J Scott Davidson at 58
[244]
John Chesterman & Andy Lipman at 105
[245]
See below for an explanation of the public/private key system. As it is
possible to send a message with confidence that it may
only be received and
deciphered by the intended recipient, it is possible to encrypt a document and
send the instruction (and any
necessary key) in an attached message ciphered
with the recipient's private key. Thus, the recipient would receive the
attached
message, ascertain the encryption instructions and be able to decrypt
the main document.
[246]
"Blind" digital signatures are a possible example of such a scheme.
[247]
Using third party organisations such as Visa may be one solution that
enables the consumer to remain relatively anonymous. As long
as the retailer or
creator receives value from a reliable source this may be sufficient. A body
such as Visa should be able to authenticate
the legitimacy of the vendor also.
[248]
Lewis Lee & J Scott Davidson at 59
[249]
two mathematically related codes
[250]
Integrity of a message in this context refers to the confidence a person can
have that a message has not be altered since it was
completed by the sender.
[251]
Each party involved in the public/private key scheme has two keys associated
with them (their public key (A) and private key (B).
Using a mathematical
relationship (the RSA algorithm) these two keys can be used to cipher and
decipher messages. A message ciphered
(scrambled) with A can only be deciphered
(unscrambled) with B. It is not possible to cipher and decipher a message with
the same
key. Further, the nature of one key cannot be discovered from the
other key in the pair. Hence anybody can send a confidential
message ciphered
using A (this key, being the public key, is freely available) without fear of
interception because only by using
B can the message be understood. The person
associated with A is the only one with access to B.
The corollary is also true. If
the sender of a message wanted the recipient to
be sure that the message had come from the sender and nobody else, the sender
would
cipher the message with B. With the ciphered message there would be a
"plain-text" instruction that A should be used to decipher
the main message.
The recipient would attempt to decipher the main message using A and, if
successful, would know for certain that
the message originated from the sender.
That is because no other person has the ability to encode a message such that A
could decode
it (only by using B can this be done). Finally, the recipient can
be sure that the message had not been altered after the original
sender sent it.
If the communication had been tampered, deciphering would only produce nonsense
characters and symbols.
[252]
eg The Times <www.the-times.co.uk>
[253]
Before distribution to an individual user, word processing software could be
specifically encoded to require the user to identify
themselves (ie by a unique
password) each the application is used.
[254]
Lewis Lee & J Scott Davidson at 55
[255]
eg retina scans, voice identification, fingerprint scans, keystroke dynamics
and facial image recognition
[256]
Lewis Lee & J Scott Davidson at 55
[257]
They are known as personal identification tokens. See Lewis Lee & J Scott
Davidson at 56-7
[258]
Lewis Lee & J Scott Davidson at 56
[259]
A disadvantage of the automated callback system is that is discourages
mobile access to the system (ie where a user is able to move
from one place to
another and still access the system).
[260]
See above. If encypted in this way, the file would only be accessible to the
holder of the corresponding private key (ie the user).
However, once decrypted,
the file would be able to be communicated to third parties free of any controls.
[261]
see below
[262]
Some Internet sites provide downloadable .exe (executable software programs)
instead of pure content files such as a word processing
document or picture
file. For example, the World Trade Organisation website (www.wto.org)
[263]
Blue Spike, Giovanni Digital Watermarks Create Audit Trail
[264]
Scott Moskowitz, So this is Convergence? - Technical, Economic, Legal
Cryptographic, and Philosophical Considerations for Secure
Implementations of
Digital Watermarking; see also Record Industry Association of America press
release.
[265]
Elizabeth Veomett, "Digital Security: Just add watermark"
[266]
It would be of such an in significant nature that the human ear would be
unable to distinguish the mark from other pieces of random
noise and tone in any
recording.
[267]
Elizabeth Veomett above
[268]
Through a watermark within the binary code
[269]
Peter Cassidy "How new 'digital watermarks' can protect your on-line images"
[270]
This includes the specific versions used
[271]
called as a "knowbot"
[272]
Examples of these include the "spiders" currently used for some search
engines. See <www.webcrawler.com>
[273]
Copyright Reform and the Digital Agenda at 4.6; John Chesterman & Andy
Lipman at 90
[274]
see above; John Chesterman & Andy Lipman at 102
[275]
also concluded in 1996
[276]
John Chesterman & Andy Lipman at 102
[277]
John Chesterman & Andy Lipman at 100
[278]
This has been described as an Application Service Provider (ASP) model.
[279]
Circumvention techniques do exist - see "Some shared issues" below.
[280]
However, circumvention techniques exist. See below under "Some shared
issues"
[281]
For example, it has been reported that an advanced encryption algorithm,
based on a 56-bit key, has been "easily cracked in some
high profile
demonstrations" - Courtney Macavinta "White House eases cryto limits"
[282]
John Chesterman & Andy Lipman at 100
[283]
ie a musical
[284]
Using such a process it is the sounds produced by the first recording that
have been copied, not the underlying digital code. However,
the watermark is
contained within the sounds themselves (ie within the pitch and rhythm of the
songs recorded). Any duplication
of these sounds will then contain the
watermark. See Elizabeth Veomett above; Jian Zhao, Digital watermarking is the
best way to
protect intellectual property from illicit copying; Peter Cassidy
above
[285]
By storing the pattern of pixels used in the image.
[286]
A discussion of the concept of fair dealing is beyond the scope of this
paper. For an analysis of the topic, see Colin Golvan,
An Introduction to
Intellectual Property law; Donald F Johnston, Copyright Handbook; Jerome Miller,
Applying the new copyright law:
A guide for educators and librarians
[287]
Copyright Reform and the Digital Agenda at 4.62; News Section: National
Reports [1997] 9 EIPR 229 at 231; Anthony Mason, "Developments in the Law of
Copyright and Public Access to Information" at 637; Department of Communication
and the Arts, Copyrites - No 28; Courtney Macavinta, "House clears copyright
Act"
[288]
Anthony Mason at 637-638; Thomas Vinje, "The New WIPO Copyright Treaty: A
Happy Result in Geneva" at 236
[289]
Chris O'Hanlon, "Get copied, be noticed"
[290]
See "features of digital content" above
[291]
Laurence Tellier-Loniewski & Alain Bensoussan, Digital Broadcasts raise new
Copyright Issues - technology is forcing changes
in moral rights, economic
rights and contract rights; Stephen Loughnan, "Service Provider Liability for
User Copyright Infringement
on the Internet" at 22; Dr Andrew Christie at 151;
Sam Ricketson, The Challenges to Copyright Protection in the Digital Age;
Jennifer
Douglas, "Too Hot to Handle? - Copyright Protection of Multimedia" at
103-4
[292]
or at least non-commercial
[293]
Tony Sarno, "Making Web sites pay"; Beth Lipton, "Net Music pirates face
lawsuits"
[294]
Dr Andrew Christie at 151; Raymond Nimmer & Patricia Ann Krauthaus,
"Copyright on the Information Superhighway: Requiem for
a Middleweight" at 26;
US Information Infrastructure Task Force, "Intellectual Property and the
National Information Infrastructure
- The Report of the Working Group on
Intellectual Property Rights" (The United States Report) at 183
[295]
above
[296]
Courtney Macavinta, "Net firms mix sex, stock quotes"
[297]
See BigPond <www.bigpond.com> and Ozemail <www.ozemail.com.au>
[298]
a "micropayment"
[299]
This is another example of the "first to market" model - see below.
[300]
See <www.afr.com.au>
[301]
Tony Sarno above
[302]
Tony Sarno above
[303]
Sam Ricketson above; Shane Simpson, "Moving Towards Copyright Control on the
Internet" at 201
[304]
See for example the Sydney Morning Herald Online <www.smh.com.au>
[305]
John Perry Barlow above
[306]
Chris O'Hanlon above
[307]
ie Infobeat <www.infobeat.com>
[308]
This is analogous to the Shetland Times dispute discussed earlier.
[309]
In the physical realm Tommy Hilfiger is reported to budget for a "20 per
cent loss of inventory to pilferage as a marketing exercise".
See Chris O'Hanlon
above
[310]
or even to other digital/non-physical operations
[311]
Eg Mallesons Stephen Jaques - <www.msj.com.au>
[312]
It is reported that Digital established the Alta Vista engine to demonstrate
how fast and reliable its mainframe computer systems
are - see
<www.altavista.com>
[313]
Jim Hu, "Portals offer alternative gateways"
[314]
CNet News "The neighbourhood rush"
[315]
See <www.toyota.com.au>
[316]
See for example the "South Park" fan websites - Beth Lipton, "The price of
free expression"
[317]
Chris O'Hanlon above
[318]
See Netscape <www.netscape.com.au>, Microsoft <www.microsoft.com.au> and
<www.adobe.com>.
[319]
The business' image and reputation in the marketplace is known in
traditional business models as "brand power".
[320]
Shane Simpson, "Moving Towards Copyright Control on the Internet" at 202
[321]
John Perry Barlow above; Gordon Hughes, "Exploiting Computer Software" at
204; Shane Simpson, "Moving Towards Copyright Control
on the Internet" at 201;
United States Report at 192
[322]
Laurence Tellier-Loniewski & Alain Bensoussan; Dominic Bencivenga,
"Protecting Copyrights - Law and Technology Out of Sync in
Digital Age"
[323]
Antonio Mille at 575-6
[324]
or more probably a digital collection society representing owners
[325]
APRA and CAL are already attempting to apply their current licences to the
digital domain or to create new kinds of licences for
this context.
[326]
Shane Simpson, "Moving Towards Copyright Control on the Internet" at 200
[327]
An example is the Internet based bookshops like Amazon Books
<www.amazon.com> and music retailers like CD Now <www.cdnow.com>.
[328]
See above under "Digital watermarks" the discussion of online music
distribution. See also Thomas Vinje at 236; Stephen Peach &
Mia Garlick,
"Copyright and the Digital Agenda: An analysis of the proposed changes".
[329]
See Netscape <www.netscape.com.au> and Microsoft <www.microsoft.com.au>
[330]
This has some interesting implications for rules such as parallel importing
- see Mark Davison at 274; Sue Lowe, "The world is your
bookstore"
[331]
David Higgins, "Pirates of the High C's"; Joe Casimir, "The suits won't wear
tailor made"; Audio-Visual Copyright Society Ltd v
New South Wales Department of
School Education (1997) 37 IPR 495 at 512; Shane Simpson, "Moving Towards
Copyright Control on the Internet" at 200; Highways to Change - Copyright in the
new communications
environment at 65
[332]
Megan Richardson and Steven Macchi, "Intellectual Property Cases in the
Australian High Court: An Economic Reappraisal" at 133-4
[333]
The Sydney Morning Herald <www.smh.com.au>; The Australian
<www.theaustralian.com.au>; ABC News <www.abc.net.au/news>
[334]
John Chesterman & Andy Lipman
[335]
eg telecommunications costs or computer storage media
[336]
[1993] HCA 10; (1993) 176 CLR 480
[337]
Jenny Zaverdinos at 160-61
[338]
Copyright Law Review Committee website
<www.agps.gov.au/customer/agd/clrc/homepage.html>; Highways to Change -
Copyright in
the new communications environment
[339]
see "Transient Copies" above under the heading "Common Issues"
[340]
This possibility was raised but not discussed in detail in Highways to
Change - Copyright in the new communications environment
at 5-6
[341]
Jenny Sinclair, "Online law trends"
[342]
Sensual works may include new technological developments that provide the
taste, smell and touch senses with stimuli.
[343]
A copyright owner would still be able to authorise specific types of action
such as a broadcast or publication by different people
under the licensing and
assignment power. Eg Robyn Coyle has suggested a Convergent Technologies Act in
"Copyright & Cyberspace
- Divergent Notions" at 69; see also McKeough and
Stewart at [9.22]
[344]
Highways to Change - Copyright in the new communications environment at 25-6
[345]
Mark Twain is reported to have said in an 1897 Cablegram that "The reports
of my death are greatly exaggerated." - see
<www.tarleton.edu/activities/pages/facultypages/schmidt//Mark_Twain.html>
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URL: http://www.austlii.edu.au/au/journals/MurdochUeJlLaw/2001/11.html
