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INFORMATION IN A DIGITAL AGE - THE CHALLENGE TO COPYRIGHT Continuing the series of commentaries from leading practitioners on the impact of digitization on the intellectual property system, CLSR publishes Hilary Pearson's paper on the challenge to copyright of digital information. INTRODUCTION DIGITIZATION OF INFORMATION While the computer revolution has had wide effects, perhaps the most far reaching is the digitization of information. Traditionally, most information has been transmitted by graphic means, such as letters or drawings, or by waves, such as sound waves or electromagnetic signais. Computers can only operate on binary digits, so information must be reduced to such numbers if it is to be manipulated by a computer. Conversely, the development of inexpensive computing power has made it advantageous to transform many kinds of information to digital form for transmission. We have already seen the digital CD replace the analogue LP record, and telephone conversations are increasingly transmitted digitally. Digital radio is now in the stage of test transmissions. There are two main advantages of digitization; transmission takes place without degradation, which means that every copy is perfect, and copies can be made very quickly and cheaply so that a document could be sent to potentially millions of people for only transmission costs. THE DEVELOPMENT OF COPYRIGHT Copyright developed to deal with the analogue world. Historically, our present system of copyright grew out of attempts by the government to control the information revolution brought about by the development of printing. The right to print books was given exclusively to members of the guild of stationers, who were a recognized body with privileges which made them susceptible to government influence. When unlicensed publishing began to flourish, the guild members sought a law to prevent this. The Copyright Act 1709 gave the author and his assigns the exclusive right to print a book. The exclusive rights and the types of work protected gradually increased through a series of statutes, culminating in the present legislation, the Copyright, Designs and Patents Act 1988. CYBERSPACE Articles on the Internet or on the effects of the digitization of information usually contain a reference to 'Cyberspace'. The word was introduced into the language by the science fiction writer William Gibson in his 1984 novel 'Neuromancer'. The term describes the situation when some activity takes place entirely within a computer system or a network of such systems. Cyberspace is no longer confined to the pages of science fiction. In the commercial world, banking transactions now almost wholly take place in cyberspace; the only 'real' money left is the stuff in your pocket, and the use of such small change is continuing to decrease as we increasingly rely on credit cards and direct debit methods to pay for our purchases. The development of digital cash, such as the Mondex scheme, will further decrease the use of metal coins and paper notes in favour of information stored electronically. It can be seen that the Internet is one aspect of cyberspace. It is the growth of the Internet that is currently posing the greatest challenge to existing concepts of copyright. The Internet is a way of publishing information, which can include copyright works, instantaneously and with virtually no effort, to an enormous audience. The features of digital information described above, perfect copies made cheaply, are combined with cheap distribution to a potentially worldwide audience. While these features provide potential to enrich and empower the human race, they also provide a means for copyright infringement on a scale hitherto impossible. INTERACTIVE WORKS The manipulation of digital media will transform the world of entertainment, from the interactive encyclopaedia on your computer to the virtual reality computer game. The same techniques have the potential to improve general education and skills training, in the way that the use of simulators (perhaps the first virtual reality games!) has improved the training of pilots. Interactive TV is already in the trial stage in several countries. The problems of control, of preventing misuse, of protecting intellectual property that the Internet raises are also raised by the use of interactive works and virtual reality. THE INTERNET - COPYRIGHT USE AND ABUSE It is possible that material placed on the Internet, either by a service provider or a user, is the subject of copyright owned by a third party who has not consented to this activity. Can the Internet service provider be liable for copyright infringement? UK COPYRIGHT LAW The UK law of copyright is found in the Copyright, Designs and Patents Act 1988. That lists the copyright owner's exclusive rights as the rights to copy, issue copies of the work to the public, perform, show or play in public, to broadcast or include it in a cable programme service and to make adaptations. Copyright is infringed by doing any of those acts without the consent of the copyright owner. These acts are direct infringement; however, the importation, sale, distribution, possession in the course of business or public distribution of an infringing article is also infringement. This is called 'secondary infringement'. The 1988 Act for the first time made provision for electronic media. Copying includes storing the work in any medium by electronic means, and translation of a computer program includes conversion from source to object code or translation 90

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Page 1: Information in a digital age — The challenge to copyright

INFORMATION IN A DIGITAL AGE - THE CHALLENGE TO COPYRIGHT

Continuing the series of commentaries from leading practitioners on the impact of digitization on the intellectual property system, CLSR publishes Hilary Pearson's paper on the challenge to copyright of digital information.

INTRODUCTION

DIGITIZATION OF INFORMATION While the computer revolution has had wide effects, perhaps the most far reaching is the digitization of information. Traditionally, most information has been transmitted by graphic means, such as letters or drawings, or by waves, such as sound waves or electromagnetic signais. Computers can only operate on binary digits, so information must be reduced to such numbers if it is to be manipulated by a computer. Conversely, the development of inexpensive computing power has made it advantageous to transform many kinds of information to digital form for transmission. We have already seen the digital CD replace the analogue LP record, and telephone conversations are increasingly transmitted digitally. Digital radio is now in the stage of test transmissions. There are two main advantages of digitization; transmission takes place without degradation, which means that every copy is perfect, and copies can be made very quickly and cheaply so that a document could be sent to potentially millions of people for only transmission costs.

THE DEVELOPMENT OF COPYRIGHT Copyright developed to deal with the analogue world. Historically, our present system of copyright grew out of attempts by the government to control the information revolution brought about by the development of printing. The right to print books was given exclusively to members of the guild of stationers, who were a recognized body with privileges which made them susceptible to government influence. When unlicensed publishing began to flourish, the guild members sought a law to prevent this. The Copyright Act 1709 gave the author and his assigns the exclusive right to print a book. The exclusive rights and the types of work protected gradually increased through a series of statutes, culminating in the present legislation, the Copyright, Designs and Patents Act 1988.

CYBERSPACE Articles on the Internet or on the effects of the digitization of information usually contain a reference to 'Cyberspace'. The word was introduced into the language by the science fiction writer William Gibson in his 1984 novel 'Neuromancer'. The term describes the situation when some activity takes place entirely within a computer system or a network of such systems. Cyberspace is no longer confined to the pages of science

fiction. In the commercial world, banking transactions now almost wholly take place in cyberspace; the only 'real' money left is the stuff in your pocket, and the use of such small change is continuing to decrease as we increasingly rely on credit cards and direct debit methods to pay for our purchases. The development of digital cash, such as the Mondex scheme, will further decrease the use of metal coins and paper notes in favour of information stored electronically. It can be seen that the Internet is one aspect of cyberspace. It is the growth of the Internet that is currently posing the greatest challenge to existing concepts of copyright. The Internet is a way of publishing information, which can include copyright works, instantaneously and with virtually no effort, to an enormous audience. The features of digital information described above, perfect copies made cheaply, are combined with cheap distribution to a potentially worldwide audience. While these features provide potential to enrich and empower the human race, they also provide a means for copyright infringement on a scale hitherto impossible.

INTERACTIVE WORKS The manipulation of digital media will transform the world of entertainment, from the interactive encyclopaedia on your computer to the virtual reality computer game. The same techniques have the potential to improve general education and skills training, in the way that the use of simulators (perhaps the first virtual reality games!) has improved the training of pilots. Interactive TV is already in the trial stage in several countries. The problems of control, of preventing misuse, of protecting intellectual property that the Internet raises are also raised by the use of interactive works and virtual reality.

THE INTERNET - COPYRIGHT USE AND ABUSE It is possible that material placed on the Internet, either by a service provider or a user, is the subject of copyright owned by a third party who has not consented to this activity. Can the Internet service provider be liable for copyright infringement?

UK COPYRIGHT LAW The UK law of copyright is found in the Copyright, Designs and Patents Act 1988. That lists the copyright owner's exclusive rights as the rights to copy, issue copies of the work to the public, perform, show or play in public, to broadcast or include it in a cable programme service and to make adaptations. Copyright is infringed by doing any of those acts without the consent of the copyright owner. These acts are direct infringement; however, the importation, sale, distribution, possession in the course of business or public distribution of an infringing article is also infringement. This is called 'secondary infringement'. The 1988 Act for the first time made provision for electronic media. Copying includes storing the work in any medium by electronic means, and translation of a computer program includes conversion from source to object code or translation

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into a different source code. There is special provision for remote copying; a person who transmits the work over a telecommunications system (which does not include broad- casting or cable) knowing or reasonably believing that reception of the transmission will cause infringing copies to be made is himself an infringer. The UK law has a number of statutory limitations on the scope of the exclusive rights. Fair dealing for private study, criticism or review, or reporting of current events, or the incidental inclusion in another work (for example, a statue in the background of a photograph of a city square) is not infringement. There are detailed provisions dealing with those educational uses and the activities of libraries which are exempt from infringement liability.

US COPYRIGHT LAW The exclusive rights given to the copyright owner of any copyright work under the US copyright law are the rights to reproduce and distribute copies and to prepare derivative works. In the case of literary, musical, dramatic and choreo- graphic works there are also both the rights of public performance and public display, while other types of copyright work have either the right of public performance or the right of public display, whichever is appropriate. Unauthorized doing of any of these acts is copyright infringement, and US law also has the concept of secondary infringement. There are a number of limitations on the scope of the exclusive rights, the most important being the fair use provisions which are in much more general terms than the UK fair dealing exceptions.

COPYRIGHT INFRINGEMENT ON THE INTERNET It is clear from the scope of the exclusive rights of the copyright owner that any Internet service provider who uses or knowingly permits others to use his Internet service to disseminate unauthorized copies of copyright works is in danger of a civil action for infringement. Both countries also provide that infringement may be a criminal offence, although in both countries there must be a commercial motive before there is criminal liability for copyright infringement. There have already been a number of cases in the US which have involved bulletin boards containing copyright material which could be downloaded by those accessing the board. In Sega Enterprises v Maphia, 857 F.Supp. 679 (N.D. Cal. 1994), the Defendant operated a computer bulletin board on which users were uploacling and downloading copies of Sega's copyrighted video games without the authorization of Sega. The evidence showed that the Defendant knew perfectly well what his bulletin board was being used for, and he also distributed and sold video game copiers which could be used to make unauthorized copies of Sega's games. The Court held that the Defendant, in facilitating unauthorized copying, was himself infringing Sega's copyright. For good measure, it also found that his activities had published Sega's trademark via the Internet which was a trademark infringement. In Playboy Enterprises Inc. v Frena, 839 F.Supp. 1552 (M.D. Fla 1993), the Defendant's bulletin board had distributed unauthorized copies of photographs from the Playboy magazine. The Defendant was held to have infringed Playboy's copyright, even though he claimed that he did not himself put such material on his board and was, in fact, unaware that

some of his subscribers were doing so. The Court held that the mere fact that he was making copies available was an infringement of the copyright owner's exclusive right to distribute or authorize the distribution of copies of the protected work. The Court also found that the fact that subscribers were able to view the photographs on their computer screen constituted an infringement of the public display right. It is not only the small bulletin boards that are accused of copyright infringement. In Frank Music Corp. v CompuServe Inc., a case pending in Southern District of New York, CompuServe has been sued by a group of music publishers claiming that its bulletin board, which allows subscribers to upload and download music compositions in electronic form, is an infringement of their copyrights. Perhaps the most publicized case involving copyrighted material was the criminal prosecution of David LaMacchia, a student at MIT. LaMacchia operated a bulletin board service from the MIT computer system which invited users to post commercial software on the Internet for exchange with other users. He made no personal gain from these activities, which allegedly cost software publishers over $1 million in lost sales. In the absence of a commercial motive, prosecution for criminal copyright infringement was not open so he was prosecuted under the US Computer Fraud and Abuse ACt 1986. The defence lawyers claimed that he should be treated in the same way as a telephone company, who would not have liability simply because copyrighted material was transmitted over its wires for the purpose of making an unauthorized copy, whereas the prosecutors argued that he should be treated in the same way as a publisher or a broadcaster. Although the Massachusetts District Court characterized LaMacchia's beha- viour as ;;heedlessly irresponsible, and at worst as nihilistic, self- indulgent and lacking in any fundamental sense of values", it dismissed the indictment on the grounds that Congress had provided exclusively under the Copyright Act for criminal offences relating to copyright infringement, so a 'back-door' prosecution under the 1986 Act was not permitted. United States v LaMacchia, 871 F.Supp 555 (D. Mass. 1994). There have been a number of other prosecutions under this 1986 act, as well as under other criminal statutes designed to bar interstate traffic in stolen property and federal wire fraud. Most of these have involved stolen proprietary information, but others have involved publication of unauthorized copies of copyright works. In the UK, it has been very briefly reported that a video game pirate known as 'The Executioner' has been convicted of illegally distributing Nintendo and Sega games in the UK via an electronic bulletin board. Other trials are expected.

SERVICE PROVIDERS So far as civil liability for copyright infringement is concerned, there seems to be no reason why UK Courts would not follow the line that has been taken in the US, and hold that an Internet service provider could be liable for copyright infringe- ment by either issuing unauthorized copies of the work to the public or by, in effect, showing or playing the work in public in cases of works such as photographs and video games. Under Section 17 of the Copyright, Designs and Patents Act 1988, copying includes storing the work in any medium by electronic

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means. The storage is undoubtedly on the Internet service provider's computer, even though a third party may have put it there. This fact of storage does differentiate most Internet service providers from telephone companies and make them more like publishers. Publishers are expected to know what is in the works they publish and it is theoretically possible for an service provider to monitor what is on his bulletin board, although in the cases of very large boards it may be difficult. These facts, together with availability to a potentially large audience rather than one-to-one communication, would indicate that a court is more likely to equate the service provider to a newspaper publisher than to British Telecom. While an Internet service provider could argue that he or she is more like a librarian than a publisher, it would seem unlikely that the statutory provisions providing certain exemptions from liability for libraries under the 1988 Act and accompanying regulations would apply to what an Internet service provider does. Although a librarian does have the ability to make copies, this is only under controlled conditions which it seems unlikely that the average Internet service provider could meet.

A N A L O G U E TO DIGITAL CONVERSION - COPYRIGHT PROBLEMS

THE DEMATERIALIZATION OF WORKS Our present law of intellectual property was developed to deal with real items, even if the IP rights themselves are intangible. A patent is only infringed if there is a real infringing object manufactured or traded or a real process actually carried out. Copyright infringement currently requires copying of at least part of the protected work in the form of a 'material object', while a trademark is infringed by a confusingly similar mark visible to the eye (or, under the new legislation, detectable by the nose). Pure information, independent of an embodying object, is only protected when it is a secret, and then only from unauthorized use or disclosure. In cyberspace there are no 'real' objects. We are dealing with 'pure' digital information. This raises new issues and problems relating to the intellectual property protection of information distributed via the Internet and similar information highways. If there is no real protection, and owners of works which have required a great deal of effort and expense to create find that electronic distribution means that they are unable to obtain a reasonable return for their works, perhaps because of wide- spread unpaid copying, they will be reluctant to use this method of distribution. The Internet and other information highways will not develop as planned if commercially important information is withheld from them.

MANIPULATION OF DIGITAL INFORMATION Lack of material objects is not the only problem for intellectual property rights owners posed by the digitalization of informa- tion. Information in digital form is much more easily manipulated and adapted than traditional forms of informa- tion, and the changes are much harder to detect. To give an example familiar to many of us, in the days of typewriters if the typist made a mistake it could only be corrected by painting over the incorrect characters with correcting fluid or something similar and then typing in the correct characters. As this

correction was easily detected with the naked eye, the only way to produce a 'clean' copy was to retype the whole page. Now, with word processing software, our mistakes are banished for ever with a few keystrokes. Hollywood provides much more sophisticated examples of manipulation of digital information. The dinosaurs in Jurassic Park were images created in a computer and combined with film images of human actors in such a way that the viewer is unable to detect the difference. Indeed, the technology has reached such a level that even human actors can be recreated by computer. When the star was accidentally killed half way through shooting the film The Crow, the film was completed using images of the actor created by digital manipulation of existing footage. Such digital manipulation can make it very difficult to detect, or to prove, infringement of the copyright in the work which has been used as the starting point. Would we recognize the Mona Lisa if all the colours were altered and the face changed by 'morphing' to that of the sitter as a child, albeit still with that mysterious smile? If the use of the original work is detected, the likely issue in any infringement action is whether the use made of that work falls within the 'fair use' exception to liability for copyright infringement. The mere fact that the original has been changed does not prevent copyright infringement, as one of the rights given to the author under the US Copyright ACt is the right to distribute modified copies of the work. In two recent cases involving the controversial and publicity seeking artist Jeff Koons, his adaptation of the copyright works of others into his own works (although made by conventional means rather than digitally) was held not to come within the fair use exception because his purpose was primarily commercial.

DIGITAL SAMPLING Another technique giving copyright owners headaches is digital sampling of music. Recorded music transformed into digital code can be manipulated in a similar way to graphical works. One example of the (legitimate) use of digital sampling is the recordings made by Natalie Cole in which she appears to be singing in duet with her deceased father, Nat King Cole, songs that he made famous. One use of digital sampling is to include in a new song a small part of a well known recording by another artist. In one reported case, three words and a small portion of the accompaniment of the recording of 'Alone Again (Naturally)' by Gilbert O'Sullivan were incorporated into a recording by another artist, and the owners of the copyright in the Gilbert O'Sullivan recording sued. Unfortunately for the development of the law, the case settled before any consideration of fair use was made. Digital sampling also raises the question of how much of a work must be taken for there to be copyright infringement. A single word or a single note of music cannot be the subject of copyright, even when the word is an invented word such as 'Exxon'. The courts have held that copyright in a work is infringed by taking a 'substantial' part of it, and the test of substantiality is quality rather than quantity. Thus, were Beethoven's 5th Symphony still in copyright, few would doubt that the copying of those instantly recognizable first four notes would be actionable infringement. Similarly,/, Reader, I married him//would likely be held to be a substantial part of Jane Eyre. The test seems to be whether the part taken has itself some originality and merit.

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As a result of the uncertainty in the application of existing law, the music industry has generally adopted a policy of obtaining licences to use digital samples. Ownership of intellectual property rights in the new work in such cases is dealt with by negotiation. This policy means that some fundamental questions of the application of copyright law to digital sampling have not yet reached the courts. For example, if only isolated notes or sounds were taken, would those have sufficient originality to be copyright works, or would only a few notes from the old work be sufficient to make the new work 'substantially similar' so as to be an infringing copy? The availability of the fair use defence is another uncertain issue. A recent US Supreme Court decision, involving use of the Roy Orbison classic Pretty Woman in a recording by the rap group called 2 Live Crew, held this was fair use because it had been for the purpose of parodying the original by making fun of it.

A U T H O R I T I E S PUT A TOE IN THE W A T E R

EUROPE - THE COMMISSION GREEN PAPER In July 1995 the European Commission published a Green Paper entitled ~/Copyright and Related Rights in the Informa- tion Society ~. In the introduction they state that full develop- ment of the information society in Europe, including the information superhighway, will require harmonization of laws, including intellectual property, to ensure that right holders will make material available while balancing the interests of users. The purpose of the Green Paper is to pose questions and to start debate, rather than provide answers, particularly ques- tions related to the application of copyright and related rights to new products and services in the information society. The Green Paper identifies certain issues which are key to the application of copyright to the new technology. These are the new services, in particular the effects of digitization and the interactive nature of such services, the new market structures and the importance of cross-border services. These raise a number of legal issues, including the identification of the 'author', the applicability of the traditional concept of 'originality' as a condition for protection, the concept of 'first publication' when a work can be simultaneously disseminated worldwide, the concept of 'fair use', and the scope of exclusive rights giving the right to prohibit exploitation of the work. The paper then goes on to examine the existing law in certain key areas and to pose a series of questions relating to each of those areas to which interested parties are invited to reply. It can be seen that in Europe we are at an early stage of the process of dealing with the application of the existing law of copyright to the information society; it is to be hoped that a wide-ranging debate on the issues and the underlying policy issues will ensue.

USA - THE REPORT ON INTELLECTUAL PROPERTY RIGHTS The US Administration has set up an Information Infrastructure Task Force to plan for and implement the National Information Infrastructure (Nil). The Task Force is organized into three committees, one dealing with telecommunications issues, one dealing with development of relevant technologies and the third, the Information Policy Committee, deals with issues

relating to the use of information on the Nil. As part of the Information Policy Committee's work a Working Group on Intellectual Property Rights was set up, chaired by the US Commissioner of Patents and Trademarks. After issuing a preliminary draft report in July 1994 and taking both oral and written evidence from a large number of interested organiza- tions and individuals, the Working Group issued its Final Report in September 1995. After examining the existing state of the US law, and the arguments for and against intellectual property protection for various kinds of information on the NIl, the Working Group has proposed to deal with the main problems that it perceived arising from dealings with works in cyberspace by amending the US Copyright Act. These amendments include defining existing infringing acts such as 'distribution', 'publication' and 'importation' to include unauthorized electronic transmission of a work where the primary purpose or effect of the transmission is to distribute a copy of the work (as opposed to a performance of the work with no copy retained by the viewer). It is also proposed to make it illegal to circumvent copy protection technology, and to provide for a scheme of copyright management information to be attached to the work, and making it illegal to falsify such information or remove it without authority. The Working Group also proposes that the elements of criminal copyright infringement be amended by removing the requirement that the defendant has to obtain monetary gain from the infringement. It was this requirement that provided the loophole through which David LaMacchia escaped, even though he had deliberately flouted copyright by distributing thousand of dollars worth of commercial software through his bulletin board.

THE UK -- DTI WORKING PARTY A multimedia working party set up by the UK Department of Trade and Industry, comprising of representatives from the media, publishing, music and computer industries, has recently reported and has, inter alia, recommended that a copyright owner who is unable to track down the source of infringe- ments distributed over the Internet should be able to obtain compensation from the service provider or force the blocking of such transmissions. Needless to say, this proposal (which could be seen as toyshop owners voting for Christmas) has caused an outcry from the service providers (who have been cast in the role of Christmas turkeys).

THE FUTURE - HAS COPYRIGHT OUTLIVED ITS USEFULNESS? The traditional view of copyright is that it is a property right arising from and limited by the originality of expression employed by the author, attached to a work embodied in a form with some measure of permanence, giving the right to control distribution of the work through the making of copies or the display of the work in public.

CHALLENGES TO THE APPLICATION OF COPYRIGHT Every aspect of this traditional view is challenged by the development of the digitization of information and the information superhighway, even leaving aside the debate as to whether there should be any protection at all for software or

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material on the Internet. Firstly, it becomes increasingly difficult to distinguish between the types of information which are, and are not, protected. The concept of 'originality' can be difficult to apply to collections of electronic data; indeed some of the most commercially useful, and therefore valuable, collections of information on a computer database are not protected by the copyright law of most countries. New issues as to authorship arise. Who is the 'author' of what appears on the screen during the playing of an interactive game? Can copyright authorship be awarded to a machine if the work is generated by a computer - we have already had a novel in the style of Jacqueline Susan produced by a specially programmed computer. The requirement of permanence, 'fixation' in US legal terminology, caused problems when it first arose in connection with software. Is this sentence sufficiently permanent to attract copyright if I have not yet saved it to hard disc and it is only recorded in volatile RAM memory? After some hesitation, courts and legislatures have generally said "yes". The transmission of works in digital form via computer networks such as the Internet raises new issues as to when and where fixation takes place.

CHALLENGES TO THE ENFORCEMENT OF OPYRIGHT It is in the exercise of the property right that the greatest challenges to existing concepts arise. The right to restrain unauthorized distribution, whether through copies or by public performance, is only of any use if such distribution can be monitored. In the past, the first control on distribution has been the relative difficulty of making copies of the work. Accordingly, to profit from infringement, multiple copies had to be made and paid for, so infringement had to go on to some extent out in the open. Contrast distribution of infringing copies through the Net; an infinite number of perfect copies can be made for virtually no cost and distributed directly to the individual recipients in their own home, from a source which can be made difficult to trace. Enforcement of rights is made even more problematical by the difficulty of recognizing whether the work has been taken when digital manipulation has been carried out. Similar problems have arisen in the past, for example the owners of rights in films and recorded music were seriously concerned about enforcement of their rights when broad- casting was a new technology; this concern was met in most countries by a scheme of blanket licensing administered by a central body on behalf of the rights owners. However, the ubiquity of the Internet, and its international nature, makes such a scheme unfeasible. It is more likely that technical solutions will be required, such as encryption of works so that

only those who have paid for a copy will have the key to obtain a useable version. The international music industry is discussing a system to identify each track of recorded music with a unique digital code, which would be invisible to the public and which would be attached to all transmissions of the work. Other types of works could be similarly coded, although such coding would have to be attached to the work in such a way that it would remain attached if the work were digitally manipulated or sampled. Monitoring infringements on the Internet also raises privacy issues, in that effective monitoring would require monitoring of private transmissions. Further problems are raised by the international nature of the Net in a world that does not have a common copyright law, let alone a method of enforcing copyright.

DOES COPYRIGHT PROVIDE THE RIGHT PROTECTION? All of these problems raise a serious challenge to copyright, because an unenforceable right is useless. However, it may also be questioned whether copyright is giving the right protection to those who provide the information without which the information superhighway is as much use as a 10 lane motorway on an island with no cars. The value to the public of such information is in being able to access it, and the value of such access depends upon the nature of the information and the circumstances of access. Tomorrow's weather forecast is of value to the organizer of an outdoor event; yesterday's is mere history to the organizer but of great interest to the insurer facing a claim for gale damage. It may be questioned whether copyright, with its requirement of originality and its emphasis on making copies and public performance, is what is needed. A right to control access is much more relevant, but at present that can only be done in limited circumstances using trade secret law. One thing is clear; any development of the law of copyright, or the development of a sui generis system of protection, will have to balance the rights of those providing the information with the public interest in making information generally available. The balance that was struck during the development of the present law of copyright may no longer be the right one. Further, the system will only work if similar protection is given everywhere the information can be accessed and used, which raises difficult balances between the needs of the developed and the developing world. We certainly live in interesting times!

Hilary E. Pearson Report Correspondent, Bird and Bird, 90 Fetter Lane, London EC4A 1JP, UK. Tel: +44 (0)171 415 6000; fax: +44 (0)171 415 6111. ©Hilary E. Pearson

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