Copyright on the Internet Howard Bryan

works and, in effect, the skill and effort of the creator. Original, implies that the work is new and not copied. In the UK copyright does not need to be registered - it exists automatically for the benefit of the author. Authors include employ- ees whose works gener- ally belong to their employer.

In the case of Ibcos Computers Ltd -v- Bar- clays Mercantile, the Judge laid down four prin- cipal questions to ask in all copyright cases:

l What are the works in which the Plaintiff claims copyright? Is each such work origi- nal?

l Was their copyright from that work?

l If there was copying has a substantial part of the works been repro- duced?

In the Ibcos case an individual went to work for a competitor and

wrote a similar program to that which he had written for his previous employer. Although he did not use his previous employer’s program as a model, he used the knowl- edge he had gained writ- ing the program. His new employer was found liable for infringement even though it was argued that he had started to produce

the program from scratch. The result was not origi- nal because it was shown that there were many si- milarities between the two programs. He had created the second pro- gram around the frame- work of the first.

Interesting parallels can be drawn between developments taking place in the world of

copyright infringement with those in the areas of defamation and trademark infringement.

Parties who believe that their trademark’s copyright have been in- fringed on the Internet are inclined to look not just to the infringer, but also his network service provider. Organizations that run networks must be alert to the possibility that they may be regarded as service providers.

A recent case in the USA demonstrates the point. Denis Ehrlich a for- mer Scientology Minister who left the Church posted messages on the USENET discussion group ‘altreligion’ containing excerpts from the Church’s sacred and se- cret texts. The Church obtained an injunction which authorized his pre- mises to be searched and the removal of published material and banned the further publication of the texts. The Order obtained is equivalent to what is known as an Anton Pillar Order in English law.

Computer Audit Update l March 1996 0 1996, Elsevier Science Ltd.

Apart from drawing at- tention to the draconian powers of the Courts which they are willing to exercise in appropriate cases, the most worrying

aspect of this case is that the Church of Scientology also sued Ehrlich’s Inter- net Service Provider NET- COM. It is this which has serious implications for the ‘Net Culture’. One correspondent said the case sounded the death knell of the Net as it would mean a level of control and censorship hitherto unknown online.

There has already been one instance involving a threat by the BBC to sue a university for damages fol- lowing the publication of photographs on a Web page by a student of the university where the copyright in the photo- graphs was owned by the BBC.

Though the issue did not result in proceedings the Web page was subse- quently withdrawn. The use by staff and students of university and college

material on their personal Web pages is a particular area of concern.

This particular in- stance also underlines that infringement can oc- cur without the person infringing copyright rea- lising that he is doing it. Downloading films or disks and then using ma- terial for teaching pur- poses is also likely to be an infringement. Here di- rect parallels can be made to infringement of copy- right by photocopying.

Questions have been asked as to whether the mere transmission in digi- tal form of material can amount to an infringe- ment. The law which was never designed to con- template answers to these sort of questions seems ready to recognize the rights of those who pro- duce such original material.

Problems will also arise on a large scale due to the fact that in many coun- tries, notably those in the Far East, there is little or no effective copyright protection.

The ease with which copyright material can be downloaded and used by anyone with access to the Internet understandably gives rise to concerns over the ability of the copyright holder to re- cover Royalties for the use of his material.

In view of the serious risks of inadvertent copy- right infringement on the one hand and of the need

to protect established copyright in material that an organization values, the following points should be borne in mind:

It is inadvisable to make unencrypted copyright material available on the Inter- net unless you are pre- pared for its worldwide dissemina- tion without payment.

Use the Net only as a commercial sampling device, so that ex- cerpts only of copy- right material are made available.

Possibly employ a Net auditor to surf forums and bulletin boards for unauthorized use.

Issue copyright warn- ings and supply terms and conditions of use with all material placed on the Internet. This may not stop people copying but as the risk of being caught in- creases it may have appropriate effect.

Always remember that putting your original material on the Inter- net in one country could possibly infringe someone else’s copy- right in another country!

Howard Bryan is a partner in the

Leeds UK, office of the law firm Eversheds.

Computer Audit Update l March 1996 c 1996, Elsevier Science Ltd.

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