Can It Exist in Cyberspace?
Digital Media Environments
Professor Lance Strate
July 1, 2010
The term cyberspace represents many things to people, not just computer technology. It is an outlet that provides a whole new world of possibilities for people to express themselves or convey some message, whether it is in the form of a typed message (e-mail), a term paper at a school level, business report at a working level, or a graphic work of art at an entertainment level. For others, it is a form of a “space” created where communication becomes possible between or among individuals who may either know each other or who could be complete strangers. The latter condition is one that seems daunting, to say the least. It is in this “space” where ideas are interchanged, works are completed, interaction occurs, and where commerce is conducted. Cyberspace is also a place where professionals, such as writers, musicians, artists, business people, and the like promote their various works to receive exposure to audiences all over the world, with the hopes of capitalizing on their work. In other words, the more exposure an artist (e.g. author) has on cyberspace, the more likely he/she will be recognized and their works will be considered for purchase, given that the artist’s work receives the promotion it merits and there is a mechanism which allows for purchase of the artist’s work online. At least, this is the ideal case scenario. Similar to our “earthly” world, in traditional ways, professional authors, performers, even artists rely on their work and their intellectual contributions to bring to the people a piece of their passion, thus enabling them to profit from their endeavors. It is these “professionals” that have sacrificed their time, or even their entire lives, to producing work that provides for them a standard of living. For this reason, individuals in any field, whether it is education, business, entertainment, etc. want to assure that their work and their intellectual efforts are protected by law, so that other people (followers) who may be tempted to obtain such work and “profit” off it illegally are prosecuted to the fullest extent. This seems quite simple to understand, at least in a centralized system where law and order work effectively. The scenarios that I have mentioned are examples of what constitutes the need for “copyright law”. It is a way of safeguarding those individuals that rely on their talent or their original ideas and allows for them to benefit monetarily from their inventions or their efforts. But what happens when you decentralize a system such as ours, make the marketplace more competitive, and “pass on” many of these ideas to everyday people who have possession of a machine known as a “computer”?
We are all connected to cyberspace and are fully aware that we are interacting in a “world” that is fueled by information. Can copyright law function in such an environment where the flow of information runs uncontrollably?
We must consider that practically the entire world is connected to cyberspace. There exists a ridiculous commercialization of every single item there is. Not to mention, there is a terrible commercialization of “intellectual property” even online. Because of this change in the way we operate on a daily basis, copyright law appears to be losing strength, especially when it comes to protecting information that is considered “intellectual property” and that is circulating in cyberspace. Some proponents of preserving copyright law want to extend traditional laws to apply to the Internet. Other skeptics (or those trying to capitalize themselves on the argument of a free cyberspace) feel that copyright law is outdated and must be undermined. Easier said than done, it is an issue that affects us all. Some people complain that copyright law is binding and circumvents the old excuse of denying “opportunities”. On the other hand, those that defend copyright see it as a necessary evil to protect their hard-earned labor. Others, such as myself, sees this as another “fashion or fad” that tries to push the other one out when in fact we could just leave things alone and strengthen current laws. Like the old saying goes, “If it ain’t broken, don’t fix it!” Ok, I will leave that topic for another paper! To fully understand the issues we face regarding copyright law, it would be helpful to begin by understanding the history of and the original copyright law, its intention, and its limitations. Then we can apply it to the current culture and determine if it is worth revamping, if the law should be eliminated or undermined, or if copyright law can be applied to cyberspace. These are important points to consider, given the “entropy” that we face in our decentralized society, but it is worth our time and our examination especially when the implications of such a law interfere in cases of learning and for personal use. Let’s begin by examining the history of the law and its intended purpose.
According to the Wikipedia Online Encyclopedia, copyright is “the set of exclusive rights granted to the author or creator of the work, including the right to copy, distribute, and adapt the work” (en.wikipedia.org). These rights can be assigned, licensed, or transferred, and copyright is said to last for a fixed period before it enters the public domain. During the copyright period, the work in question can be exclusively owned by the originator. Copyright laws came about with the advent of the printing press in the middle 15th century, as some form of royal privilege.
Nevertheless, our copyright laws stem from the “Statute of Anne” (1709), which was an “Act for Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned” (en.wikipedia.org). It was in England where the notion of what was considered “property” was conceived. The law is best explained by the reasoning of the World Intellectual Property Organization, which stated that its purpose was “to encourage a dynamic creative culture, while retaining value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public” (wiki). It is in this quote that we can see the reasoning behind copyright law. Mostly this was affixed to “tangible property”, meaning property that was owned by an individual. Copyright has also been considered under the umbrella term “intellectual property”, along with patent and trademark since the 19th century, and it is by this idea of “intellectual property” that creators have wanted to exercise full control over their work, not to mention the monetary benefits that result from the protection of the law (publishers are guilty of this). Initially, copyright was utilized for books. The Statute of Anne allowed for copyright protection of fourteen years, as opposed to a perpetual term, so this kept the system from becoming a monopoly.
In France, royal privileges were needed to publish a book. This privilege was exclusive and allowed for up to six years. After that, the owner of such privilege could renew indefinitely. Later in around 1777, royal privileges were agreed to for ten years or the life of the author, whichever was longer. The author who purchased the privilege and did not transfer or sell the privilege could publish and sell books himself and pass on the privilege to his heirs, who would enjoy the privileges in perpetuity. It wasn’t until after the French Revolution that this “royal privilege” idea was countered because of a dispute with an art company named Comedie-Francaise for being granted exclusive rights to the public performance of all dramatic works. The argument was that anyone could set up a public theater and that any work, whose author had been deceased for five years, could be placed in the public domain. This abolished the royal privilege, so instead, a new copyright law was placed in 1793, which gave authors, artists, and composers the exclusive right to sell and distribute their works, and extend those rights to their heirs for ten years after the author’s death. This limited copyright allowed for competition and the protection against any monopoly that would result as a consequence. This law was labeled
“Declaration of the Rights of Genius”. As a condition, copies of work created had to be deposited in the Bibliotheque Nationale. This act was considered “utilitarian”, meaning for the common good of mankind, back in the 19th century.
U.S. copyright law, on the other hand, was not so important for the early colonists because their culture was agrarian. There is record of only three copyright laws being passed before 1783. Two of the laws allowed for a five-year protection, the other lasted for seven. That same year some author’s petitions to the Continental Congress requested that “nothing is more properly a man’s own than the fruit of his study, and the protection and security of literary property would tend to encourage genius and promote useful discoveries” (wiki). However, under the Articles of Confederation, the Continental Congress had no right to issue copyright, but instead passed a resolution allowing the States to “secure to the authors or publishers of any new book not hitherto printed the copyright of such books for a certain time not less than fourteen years from the date of the first publication, and to secure to the said authors, if they survive the first term, the copyright of such books for another term of time no less than fourteen years” (wiki). In a way, this sounds like a renewable contract, but it was estimated that the most a copyright would last was the lifetime of the author. For the most part, early copyright law followed the pattern of the Statue of Anne and the Continental Congress format of fourteen years, while other states enacted a single term of fourteen, twenty, or twenty-one years, with no renewal. Actual copyright law can go as long as 99 years! The first inkling of a copyright law was seen in 1787 at the Constitutional Convention, where James Madison of Virginia and Charles Pinckney of South Carolina made proposals that would grant copyright for a limited amount of time. These are the formations of the Copyright Clause in the U.S. Constitution, which allow for setting copyrights and patents for a limited amount of time to stimulate progress in sciences and the arts, thus serving as a utilitarian function. Initially set out to serve a common good, copyright law has served its purpose over the years, but as media has changed, so have the expectations of the law. It is through these expectations that we experience firsthand conflicts among three parties: the producer of such works, the receiver (namely the consumer of the work), and the government which fabricated the law. For now, we have an understanding of what the origins of the law are. Now let’s look at how this law can be used, abused, and in today’s era of cyberspace, how it can be manipulated to achieve a desired end. Let’s also take
into consideration those who want to “do away” with copyright law as it is because, according to those skeptics, it doesn’t apply to an information “age”.
We begin by examining what a copyright is all about. To begin, it is “a protection that covers published and unpublished literary, scientific, and artistic works, whatever the form of expression, provided such works are fixed in a tangible or material form” (whatiscopyright.org, 2010). This typically means that if you can see it, hear it, or touch it, it may be protected (ex: essay, play, photograph, song lyrics, sound score, video, dance move, HTML coding that can be placed on paper, recorded on tape, or saved on a hard drive, etc.). Copyright grants the producer or creator exclusive rights to reproduce, prepare related works, distribute, perform, and display or play the work in public. This only allows the creator, not the public, the right to execute any action he/she sees fit with the work in question. Protection of copyright begins when the work created becomes a fixed tangible form, such as when a person writes lyrics to a song on paper, signs on the bottom, and adds the copyright symbol© next to the name. This can be then sealed in an envelope and sent to the U.S. Copyright Office in order to be registered for protection. This also serves as protection for a creator in case someone else copies and redistributes the work without permission. The process applies to digital art and graphics as well. So, if a person produces, uses, copies, or distributes material, for commercial or personal purposes, without written authorization of the creator, the person is committing infringement of copyright and is, therefore, in violation of such. “It doesn’t matter if the person committing the violation is a ‘newbie’; and/or doesn’t know what copyright infringement is about” (whatiscopyright.org, 2010). In other words, ignorance of the law does not make a person exempt from responsibility. The person using such work must exercise due diligence before using the work. No sensible person would allow someone else to sell their personal letters for publication without the creator receiving any kind of profit for it in return. That is the gist of the existence of copyright law.
Keep in mind that originally, copyright was intended for “tangible” property, meaning property that had physical form, such as books. There is another side to the argument of copyright, and that is the notion that property can also be “intangible”, meaning with no physical form, pertaining to the mind. Naturally, any work of art or science is the result of mental capacity which generates such work, for educational purposes or for aesthetic reasons. In our recent times, there has been a stirring debate about applying copyright protection to intangible
property, meaning ideas and creativity. Some people view it as another way of holding to a monopoly that already exists, as a means of doing business. Others view it the opposite way: it is the protection of a creator’s brain power which helped generate some invaluable work. The debate becomes difficult when two principles collide, according to Clyde Wayne Crews, Jr. and Adam D. Thierer in their article “When Rights Collide: Principles to Guide the Intellectual Property Debate”. Crews and Thierer see two important principles collide: “legal protection for intangible works butts up against free expression and exchange of ideas” (Crews, Thierer, 2001). On one hand, there are the “radical voices” that believe there is no such thing as a right to own intangible ideas and the whole system of limited grants on monopolies is outdated and needs to be tossed aside. On the other, there is some consensus that innovators should be rewarded for their intellectual creations. Crews and Thierer tend to agree that with this limited grant, entrepreneurs are given the incentive to generate important life-enriching products and ideas, thus re-enforcing the common good approach. It’s not just about the capitalization of the work in question but how those unique ideas can benefit all of humanity in their quest for advancement. There does seem to be some agreement by the authors of this article that some people take this issue too far when there is a desire to promote excessive terms of protection, thus undermining motivation for creators when the original creators are already deceased (as in the case of Walt Disney and the famous copyright protection of its line of characters). The article points out that we face a problem of intellectual property on the Internet and in finding a balance of artistic and entrepreneurial incentives with the interests of the larger community of users in a “free, unhindered exchange of products and ideas” (Crews and Thierer, 2001). To this, the authors propose 3 ideas to keep in mind when considering this responsibility that should be exercised: 1) Take the principle “To Promote the Progress of Science and Useful Arts” seriously. Terms set for the amount of time copyright protection are valid and arbitrary. One must keep in mind that any copyright term that is indefinite or very long will provide diminished incentives for creativity. When copyright favors extended periods of time, the question to consider is whether this behavior leads to a monopoly, which only discourages the healthy progress of science and useful arts. 2) Don’t ban new technologies or business models to solve patent or copyright problems. This is the battle between the side of the argument that wants to restrict file-sharing technologies for the sake of reducing copyright control in cyberspace, while the other
side that shares copyrighted files sometimes ridicules newer technologies that in turn aid the process of copyright protection, technologies that make possible digital watermarking, encryption, and incorporation of digital management into security hardware, to name a few. 3) The last proposal is to remove government barriers to the marketplace’s ability to protect intellectual property. Here, it is important to determine when exaggerated antitrust laws interfere with private efforts to grant licensing of songs (e.g.). In other words, restrictive contracts that antitrust law might regard as suspicious could benefit a consumer by ensuring returns for producers. Some people in the academic world have suggested that antitrust law may force the “need” for more intellectual property law and enforcement than is needed. Overall, the three suggestions contain, as an underlying purpose, the idea that relaxation of copyright law can only benefit those whose “intellectual and tangible properties” are in question, especially when dealing with cyberspace. Yet, when you look at both sides of the issue, both have reasonable defenses to state their case. It is a battle of arriving at a middle ground. Later in this paper, I propose two questions that should be asked when attempting to determine the motives for utilizing a copyrighted work from cyberspace.
Continuing with clarification of copyright law, the three most important topics of this law that merit attention and clarification are: plagiarism of text, infringement of copyright when using photocopying (Xerox) machines, and duplication of web pages and text on the Internet. Ronald Standler, author of the article “Some Observations on Copyright Law”, outlines what constitutes “fair use” of copyrighted material, and he dates this back to the Copyright Act of 1976, which points out where “fair use” can be applied: for the purpose and character of the use, including whether such use is of a commercial nature or for nonprofit educational purposes, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. Standler adds: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors” (Standler, 2009). In other words, whether the work is published or not, the laws of copyright protection can be applied to defend the work of a creator. According to this article, Standler mentions instances when copyright is being infringed upon when creating a website. For example, finding text or a
picture, uploading it on a website without any changes is outright copyright violation. The most favorable way of using copyrighted material in such a way is by posting a hyperlink for reference. Finding text, copying with a few changes or additions and uploading to a website is also copyright infringement, but if you take a small piece of text and include it in a quotation in your work, it is legal as long as you make the citation (as would be the case for writing a school paper or a book; it is debated that for educational purposes, the rules are different). One could also consider including a disclaimer on a web page calling to the author of some work to send an email requesting that the material be taken down, and if no answer, it is assumed that the creator of the work agrees with such action. This may be fine, but copyright law misunderstands that, according to Standler. One area of this article that I found most interesting was the section on how photocopying machines promote copyright violation. Examining a specific case, which applies to our educational field, Standler points to Princeton University v. Michigan Document Service, which was a case in which Princeton professors copied chapters from a textbook and submitted to Michigan Document Service to reproduce into custom-made textbooks for students. In light of the fact that no royalties were paid to the producers of the textbooks, the courts regarded this act as copyright infringement, thus sending a message out to all professors to show responsibility in demonstrating a good example for students in giving credit to the textbook authors.
On the Internet, there are many ways of making copies of copyrighted material. Since copyright was intended originally for books, recordings, films, etc., there is a move to extend copyright protection to the Internet, but this direction is quite unclear. Yet, there are still basic rules that apply when downloading or uploading copyrighted material for personal use. To begin, the plain use of viewing a page on the Internet implies that a copy is being made on the spot because the image or text is transferred from the screen to the Random Access Memory of the computer. This act in itself is not considered infringement because “authors post documents on the Internet with the intent of having other people read the documents, so there may be an implied license to copy web pages during the reading of them” (Standler, 2009). In addition, when the computer is turned off, RAM is erased. Web browsers make a second copy of the material, such as Internet Explorer as a cache file, in order to make lookup of the work faster. Retrieving a document from the hard drive is much faster than reading the document from the
“source machine” and then transmitting the document through the Internet. This process of the copy in cache mode is acceptable by law, given that it is not used for any other purpose. The most practical way of making a copy is by using the Print command and printing your document. Here is where it becomes an issue. The act of printing immediately is considered an infringement of copyright law, or there may be an implied agreement or license for a set number of copies to be made by the author. This is why some web sites do not allow for printing of certain material. The way you know if material cannot be printed is if the article or the image either does not print out or generates multiple blank copies (as was the case when accessing one of the articles I wanted to use for this paper!) or increased slow time on the computer, which will manifest itself as a response to detection of copyright infringement (as in the case with some pictures). Another way of copying is to use the Save As command, which helps store HTML or JPEG files, as an example, on a hard drive.
It appears that copyright law is quite clear when it comes to cyberspace. Apparently, if you know how to dominate the code, copyright can work effectively. It should not be taken as a given that cyberspace is this outlet of “free information” that is uncontrollable. That is not so, and many people will argue that copyright laws can be extended (and they already are extended with much success) to the Internet. The battle among the government, corporations, and the consumer is a classic case which seems to have no end, yet all three are interdependent on each other, whether willing or unwilling. Going back to our USA copyright laws, and just as is the case with the rest of the world, copyright also involves foreign countries. Let’s face it, we are in a global economy and in a state of globalization, and the World Wide Web (as the name implies) is a network that makes the world “interdependent” on each other (countries). There are cases where certain nuances in the laws are different geographically. Let’s look at the moral rights of authors. In the USA, there is no such consideration for moral rights of authors, but in France, this law is important. For the French, they believe that protection of moral rights of authors does not depend on the law of the country of origin of the work. According to Standler, there was a case of actor John Huston’s film “Asphalt Jungle” which was black and white and colorized by Turner Networks. Turner has contracted with a company in France to show the movie in color. In turn, Huston’s heirs sued in a French court claiming that his moral rights had been violated. The court favored Huston’s case, and it was decided that there was violation of his moral rights.
Sure, this case is clearly representing when entities other than the one you work for become involved in making decisions without the creator’s consent. To some extent, there is a corporate ulterior motive, as is the case with most entities in this corporate-driven country of ours. Needless, to say, the concept of copyright is quite forward and requires no need to misinterpret for the sake of tailoring it to our advantage (only if you have a solid foundation to your case). Continuing with the copyright issue on cyberspace, let’s look at the two sides of the issue, the one side which sees copyright as unnecessary and which “stifles” creativity and the other, which either sees the need for a balance to the copyright issue or ascertains that traditional copyright exists in the digital world, thus defending copyright law.
To begin this examination, one of the prime proponents and advocates of net neutrality and protecting creativity on the web is Lawrence Lessig. A Professor of Law at Stanford Law School and author of the book “Remix”, he is one of the individuals that promotes the idea of abolishing copyright and sees it as some mechanism that is corporate-driven, which stifles amateur creativity. The first video “Where Do Artists Draw the Line on Copyright Law shows Shepard Fairey, the creator of the famous Obama poster “Hope” talking about how copyright affects his work and the issues he faced with the dissemination of his famous poster. Frankly, Fairey is an individual who is quite lax about copyright law but makes it clear that he would only go after “bootleg” operations. Lessig, obviously, expresses that in the “remixing” concept, there is creativity involved and that copyrighters should not “go after” those engaging in this practice because it stifles creativity. He proposes that companies need to ask themselves, to paraphrase him, “How will this affect my business?” Another video of Lessig, “Do Copyright Laws Stifle Creativity?” shows Lessig making a presentation of remixes utilizing copyrighted works, among them using a Superman film strip and videos of people dancing to R&B artists’ music. He puts these issues in front of an audience and implies that such works only allow for creativity to flourish. In other words, copyright laws are “oppressive”, according to Lessig, and Lessig continues to remark that this is “the language” of people today. One point in this video that bothered me was the way Lessig tries to “convince” people that posting YouTube videos and amateur remixes are harmless, especially the part of a mother videotaping her children dancing to music and “copyright owners” asking that the video be taken down. Here is where copyright may go too far, especially if a home video is being produced for entertainment purposes. We
should be aware that any social scenario typically features music of some artist which we play innocently just to have fun. In a country and an economy where “money matters”, that is just another example where money issues just go too far and making this a serious matter is unwarranted.
The other side of the argument poses the opposite argument: that copyright law is the law and must be regarded, even with cyberspace; however at times, it may want to find balance. Anne Fujita from the University of Florida College of Law wrote an article titled “The Great Internet Panic: How Digitization is Deforming Copyright Law”. In this article, which I consider to be ahead of its time, she states that “the new technology in our present “Information Age” has upset the delicate balance created and maintained by copyright law between the rights of authors, users, and the industries that collect the money” (Fujita, 1996). This statement raises issues of concern, such as fear of authors not being compensated for their efforts, the moral rights of authors, and even the fear of losing their right to read. Fast technology appears, according to the article, to be undermining copyright laws, or as people like to loosely state, “Our world is constantly changing”. She continues to say that the one distinction that is blurred is among the authors, the people that write and create, and the companies that get the works published. The multinational corporations are blamed for the merging of these functions. Not to mention, this is a result of a “global” economy, diluted and blurred. The emphasis on the money issue seems to be the main cause of this blur. Obviously, if you factor the three components mentioned, the author, creator, and the publishing company, you will see that everyone wants a “piece of the pie”, so the fight emerges between those creators and authors that have control of the work they create versus the consumer who wants greater access to the material and for less money. Yet another battle surges when you match up the author, the publisher, and the consumer against one another when the publisher wants to “add information” to the author’s current work and the consumer wants greater access in order to utilize this work for their own to incorporate in some work of their own, usually at an amateur level.
The reality of all of this is that the only ones here that are being affected are the authors themselves because publishers have more power to profit and manipulate any work that is circulating, with the intent of profit. The moral rights issue of authors become of concern. So in a way, copyright law is a necessary evil because it is these publishing houses that make
information available to the masses for the purposes of a “greater good” for humankind. This may sound practical, but when you look at all of the sides involved, the conflict of interest will be evident, and therefore, some balance must be achieved. Returning to the author’s moral rights claim, we have not made such an issue of it in our country because, according to Fujita, “traditional technology provides a great deal of built-in protection for author’s moral rights. With the current technology, it is very difficult for an ordinary user, a member of the public, to violate an author’s moral rights on a widespread basis” (Fujita, 1996). It is the publishing industry who would ever attempt to violate these rights, so Fujita claims that technology doesn’t cause this to happen. The real issue which affects the copyright issue in cyberspace is the easiness of digitization to copy quickly, cheaply, and easily with no loss in quality, which is then distributed to millions of users in a matter of seconds. Alterations can also be made in the same manner. Even the author’s name can be deleted and your name can be inserted. It is this easiness of the process that many owners of copyright are afraid of: losing money on account of individual users. Yes, we can claim that the copies that are generated by the users are not the same high quality as that of the original, but this is the point that copyright advocates and owners fear: the profit issue in which they can’t capitalize on the fast technology that makes this all possible. Needless to say, the technology still cooperates with copyright law. Encryptions, watermarks, etc. make protection against illegal access possible. To summarize this viewpoint, Fujita mentions that “balance” that should exist. It merely states that “copyright is not a natural right. It is a right created by law”.
Because the new technology affects the balance to such a great extent, in ways never anticipated by the drafters of the Copyright Act, we cannot use the Copyright Act, particularly its specific language, as the starting point in our analysis” (Fujita,1996). These ideas of revamping copyright stem from the Clinton Administration’s Information Infrastructure Task Force, also known as “White Paper” and “Green Paper”, which represent the two sides to the copyright issue. Instead, she proposes that we start by attacking the issue of the moral rights of authors first. It would be a call to enacting a law that would prohibit the falsification, alteration, or removal of copyright management information which includes the name of the author, a law prohibiting the alteration and dissemination of the content of an author’s work, and the author, in turn, should receive notification on a work stating that it has been altered, indicating when the
original can be accessed. Regardless of whether these measures appear to be barriers to creativity or freedom of speech, Fujita claims that there is a need for a balance. It is about sacrifice in some area. Yes, copyright law in dealing with cyberspace is quite difficult but there needs to be some written “code” which people can abide, consumers and publishers alike.
Her idea of balance is of first amending the current law, which factors in the fair use principle. As mentioned before, fair use means that we take four factors into consideration: the purpose and character of use, such as for profit or intellectual gain, nature of the copyrighted work, amount and substantiality of the portion used in relation to the work in question, and effect of the use upon its market value. While the White Paper side places emphasis on the economic side of the issue and is relentless, the Green Paper has some economic principle to it but is more concerned with the European commerce. More important, how we can disseminate more information in a global system? In the case of moral right, while the White Paper does not say much with regard to author’s moral rights, Green Paper suggests that this is important and could be resolved by requesting some kind of contract signed by the author permitting alteration to his or her work. In other words, if an author agrees to digitization of work, then he or she is bound to the conditions that may arise as a result. This alternative results in being more cooperative as opposed to passing a law requesting such behavior. Green Paper, therefore, offers this alternative. This is part of the balance that is being suggested when it comes to copyright because moral rights take the issue of intellectual property and appreciation for it one step further. The main balance here is a law amended to the copyright law that supports creativity in the sciences and the arts while protecting the dignity and privacy of individuals, rights that are granted to us by our Constitution. In an information age, this balance is the most desirable and perhaps the most complicated to achieve, but given our technology and its capacities, this can all work out with cooperation and responsibility. The key here is communication!
Conversely, there are people who adamantly believe that copyright is the same for regular media as well as digital media. Brad Templeton, author of “10 Big Myths about Copyright Explained” attempts to answer “myths” about copyright and Internet publications. Let me explain them briefly, according to Templeton: 1) If it doesn’t have a copyright notice, it’s not copyrighted. As Templeton states “This was true in the past” and “If it looks copyrighted, you should assume it is” (Templeton, 2008). He discourages people from scanning images from
magazines and posting them to the web. 2) If I don’t charge for it, it’s not a violation. If the work has no commercial value, it may not be a violation, but if you give some piece of work away, it is still a violation, especially if the action harms the commercial value of it. 3) If it’s posted to Usenet, it’s in the public domain. This is false because it is up to the creator to do so and announce that it is “public”. 4) “My posting was just fair use!” Fair use applies to comments or alternate takes, like parodies, to works already in use, but damaging the commercial value is wrong, and this may be the case when posting some work on the web. 5) “If you don’t defend your copyright you lose it. Somebody has that name copyrighted!” Once again, the copyright has to be explicitly “given away” for this to happen. Otherwise, nothing keeps a person from using a name, such as Pan Am. 6)”If I make up my own stories, but base them on another work, my new work belongs to me.” Such is also false because these derivative works are still property of the originator of the work. 7) “They can’t get me; defendants in court have powerful rights!” Copyright law is a civil matter, not criminal, so the “innocent until proven guilty” adage does not work in this case. 8) “Oh, so copyright violation isn’t a crime or anything?” Depending upon the damage done, it could be considered a felony. 9) “It doesn’t hurt anybody – in fact, it’s free advertising.” This is contingent upon the creator if he/she wants this advertised free of charge. 10) “They e-mailed me a copy, so I can post it.” Any email is copyrighted, but you won’t be able to receive damages if someone posts your email because, due to privacy matters, emails don’t have commercial value. These myths only go to show that we shouldn’t assume that cyberspace is “public domain”. While anything posted online may be easy to copy, paste, etc., all material is still subjective and the owner of such material has the exclusive right to exercise controls on what can or cannot be published. The same rules that apply to standard media, or old media, apply in the new new media sense (to quote Professor Levinson, and I will look at his views on copyright law up next).
The book “New New Media” by Dr. Paul Levinson offers an example of copyright violation on the Internet with the example of YouTube. He posits an example of posting or uploading a video, an amateur creation, using Paul McCartney’s rendition of a George Harrison song. The video is uploaded with an embed from YouTube, people view it, and comments are generated, but within a month, you find out that the video is no longer available on the site because it violated terms of service. This results because “some person or corporation told YouTube that
the video violated its copyright. The hand of old media enforcement, withered but without power, has just pulled the rug and the fun out from under your new media blog creation” (Levinson, 2009). Although people may argue that creativity has been stifled here, there is no doubt that uploading a video with copyrighted material is a violation of copyright and somehow it would be nice to credit the originator with some compensation for using his/her material. Even Levinson continues that practices, such as downloading YouTube videos for free using special software such as RealPlayer, while legal in theory, could be considered some sort of copyright infringement. The rules may not be clear-cut when it comes to new new media and what is considered legal but, as I mentioned before, it is a law and there is need for recourse to old methods to solve problems in actuality. In addition, Levinson states as his bottom line: “Dissemination of copies of a work, whether an MP3 of a recording of a YouTube clip, is impossible to prevent in the realm of new new media, and probably should not be prevented, unless money is made from the dissemination or the work is plagiarized” (Levinson, 2009). This is the problem with new new media. There are two parts to this issue, and the only thing that can be done right now is to attempt to coexist with both sides of the issue and come to some conclusion. Levinson’s book demonstrates the love and hate relationship with new new media. He is very frank when determining that copyright on the Internet is a reality despite the assumption that it is a public medium and information is everywhere.
So should copyright law be abolished, should there exist a balance, or should we assume that copyright law can be applied to cyberspace? Perhaps we need clarification to bring about a temporary solution, one that is practical and realistic, so there is no further confusion. I am going to resort back to the article “What Is Copyright Protection?” To begin, the Internet is NOT public domain! It may sound unrealistic to think, but let’s look at this argument closely. We may have the “power” to click on the mouse, access a web page, see a graphic photo, click on a hyperlink, copy the image, save it, print it, and yes, the copy is stored in cache mode. We also think that because it is on the web it is public domain, and we can take any work of another author without permission. This is false. To quote my source, “Just because your driveway is not inside of your house, is it in the public domain? Does that give anybody off the street the right to stay on your driveway without your permission?” (whatiscopyright.org, 2010) This principle applies to the Internet, and “material copied on the web may be copied freely if the
To summarize the above-mentioned points, copyright laws serve their purpose and were constructed with every possible case scenario in mind. The action that has been done is to take current law and apply it to those cases in cyberspace in order to show people that the assumption of cyberspace being “public” does not give anyone a free pass to take information and misuse it. Even when users take information for entertainment purposes, they should be held accountable, at least to the extent of being knowledgeable or possessing some working knowledge of copyright law. I am not saying that we all have to be experts in copyright law but we have a moral duty, just like we have a moral duty to be civilized, to know our limits. When dealing
with cyberspace, this “space” that has been constructed has boundaries and territories. We can look at those lines as imaginary light beams that form barriers (as in science fiction movies that fence in a portion of space as exclusive territory).
To return to Lessig for a moment, while a proponent of creativity, Lessig fails to understand the big picture. It is not that creativity on the web is bad. The problem with Lessig’s approach is that it attempts to parallel a decentralized and out-of-control system with a centralized and classic system. He supports amateur works, which are exposed in a medium that also houses or displays the works of professionals. When both interfere, the lines blur (as is the case with most things nowadays, political party lines, copyright issues, gender, etc.), so we can’t tell which is which anymore. Most of those amateurs that display their work on places like YouTube or create their blogs mostly do this for entertainment purposes, or simply don’t have much ideas of their own so they “borrow” from mainstream. The bottom line, according to the way I view the problem, is that most young people are not taught the incentive to work hard and progress as healthy humans. Instead, young people are encouraged to think that the computer can solve their problems because “it is their generation”. This is the result of a lack of responsibility on the part of the caretakers, educational institutions, and, in an indirect form, corporate demands everywhere, whether in education, entertainment, even parents working two or three jobs to satisfy corporate demands. Lessig obviously refuses to look at this side of the argument and proceeds to take it as a given that computers are the “language of our youth”. Sure, after the private sector successfully induced computer technology upon us, using young people as their targets, Lessig “washes his hands” and becomes an activist for amateur creativity. He is fortunate that the system that he defends made him rich! So now he turns around and defames copyright laws. I am quite sure that if someone took a portion of his book “Remix” and used it for his or her personal gain, Lessig would have a holiday in court with that person. Could he turn around and justify the poor soul that tried cracking his shot at fame? Is it possible that copyright laws, even in cyberspace, are placed to truly foster creativity and make people less reliant on the web for inspiration? That is something to really think about, considering that the monster that you create could turn against you!
Until now, copyright law was a law written by lobbyists for publishers and movie studios, so authors do not have legal protections for their rights. Still, it is the law by which works are protected from illegal use by unauthorized people. One of the proposals is to eliminate copyright law because of the ability to make copies with a photocopying machine or with a computer. Some people see this as a “disguised attempt to further reduce authors’ rights. The fundamental purpose of copyright law is to provide an incentive for authors to create expression, by recognizing that expression as a kind of property” (Standler, 2009). Not to mention, copyright infringement hurts them enough, it is not likely that copyright law is abolished any time soon. Keep in mind that, with regards to cyberspace, the available technology supports protection of an author’s or artist’s work. The balance that has been proposed in Fujita’s paper presents the best possible case scenario when dealing with copyright on the Internet. Yes, it is a fact that it is difficult to control the flow of information when it is no longer tied to “tangible property” (as in the case of books and cassettes) but the information control can be sustained with a new “code” to counteract it or remedy the situation. Right now, copyright law is alive and well in cyberspace. Programs exists which can protect the work or vital information of creators, which create control mechanisms that set conditions over who is authorized to view and/or access material. Creativity is not stifled, but there is a need to “communicate” effectively the needs of both parties. If both can come to some agreement and the agreement generates the “greater good”, then we will see that both can help each other.
In this “digital age”, problems will arise which need our attention, and copyright is one of those important issues which need to be dealt with. Yes, new media remediates old, but we always find ourselves resorting to old media for guidance. A system that has been utilizing a foundation for so many years cannot just “abandon” it and pretend like it doesn’t exist. It is our responsibility to “build” on the foundation and make good use of the opportunities that are available. Defending amateur works and diluting copyright law do not sound like a viable solution. Paralleling old media with new and making some connections is unrealistic. In looking at the consumer/producer concept, if these two could coexist then many years ago, when the first personal recording machines came out, such as recordable records and tapes, people that used these new devices would have had an opportunity to publicize their work and receive exposure. Even so, those who recorded personal works would still look for a talent scout with
the hopes of receiving an opportunity to attaining fame. Remember, this would be a setting in the old world, which was more centralized and order existed. This is also a system that enforced hard work and dedication. There was no need to debate about copyright because 1) we weren’t “gung ho” over money as we are today and 2) the lines were drawn: professionals did their work and amateurs respected their space. However, in today’s world, the World Wide Web decentralized the system by blending personal entertainment with business, education, hobbies, and the like. Amateurs are on the same playing field with professionals, and this condition, which should serve as an educational experience, becomes a game of “pretend”. Coupled with the money factor, you have a big fight that ensues for control of territory. Cynicism runs rampant; people are being second-guessed about their motives for posting some work on the web because, after all, there are still rules to follow. The media tell us that the Web is this public domain and the “new language” of young people. On the other hand, we must abide by copyright laws that protect those individuals or professionals that post their work online for maximum exposure. Hey, even individuals at an amateur level should have some degree of copyright protection! We just can’t take for granted the adage of a public domain and use it to our advantage, especially when the advantage being sought is negative.
So can copyright law exist in cyberspace? YES! The balance that is being sought is one that allows for “communication and responsibility”. We also need to realize that while the Internet may appear to be public domain, copyright law is alive and well and classic copyright law applies to cyberspace at all times. It is not a matter of accepting current entropy and tailoring our specific needs to the situation, but instead, it is a matter of compromising and sacrificing for a desired end. However, we should begin by stepping back and asking ourselves two important questions before choosing to use copyrighted material: “Is the intent to use copyrighted material for an educational purpose?” or “Is my intent to use copyrighted material for a profit-driven incentive?” Sure, these questions may sound naïve and people may challenge me with a cynical outlook, such as, “You know that anyone can take information and use it!” If you, on the other hand, examine those questions, you will realize that it is a call to exercise responsible behavior and a call to be educated on the issue of copyright law. These questions can also be asked of people when entering cyberspace and people once again can argue if these questions are valid to ask when individual motives and feedback can be subjective. One thing I know and am aware of
is that ultimately, in an era that is commanded by information and where we face issues regarding the protections we are granted, the factor that can determine what actions we can and cannot take is the manipulation of the code. It is this language which can set us apart from those at a greater advantage. This code can create the new social classes, and it extends far beyond any monetary factor. This will be contingent upon who has the appropriate software to counter irregularities and who is knowledgeable in a program language, more like the computer programmers. It is this condition which will finally bring some order to cyberspace and will once again draw the line between those who take computers for entertainment purposes or those who use computers for serious motives, such as business. Copyright law may just be one of many issues, but if it merits attention, it is because it involves a very valuable asset, which is intellectual ability (property). This goes beyond protection of physical or tangible objects; copyright law is and will always be a “police force” that must enforce the law when it comes to protecting other people’s property. We may as well tie in intellectual property together with moral rights. As for teaching our society’s young people that they have limits, it is up to authority figures like parents and teachers to set an example and not allow some machine to do their thinking for them. Reality awareness, interface awareness, those elements are key to the protection of other people’s “space”, but responsible behavior is priceless, and it must start from the top, with those in positions of authority so we can regain a centralized system. It is all about being educated, something that can only be experienced from human to human, one person at a time.
Crews, Jr. C.W. and Thierer, A. “When Rights Collide: Principles to Guide the Intellectual Property Debate. http://www.cato.org.pub_display.php?pub_id=4267. (2001)
Standler, R.B. “Some Observations on Copyright Law”. http://www.rbs2.com/copyr.htm (2009).
Templeton, B. “10 Myths about Copyright Explained”. http://www.templetons.com/brad/copymyths.html (2008).
Fujita, A. “The Great Internet Panic: How Digitization is Deforming Copyright Law”. http://grove.ufl.edu/~techlaw/vol2/fujita.html (1996).
Levinson, P. “New New Media”. Allyn & Bacon: New York, 2009.