Copyright in the Information Society – An Opportunity Missed

Copyright in the Information Society – An Opportunity Missed

The coming of the alleged ‘Information Superhighway’ has thrown into crisp focal point the importance of right of first publication and its protection of, in peculiar, plants of literary, artistic and musical virtue. Lloyd opines:

“If the innovation of the printing imperativeness resulted in a move from an unwritten to a written tradition at the monetary value of chaining information to the pages of a book, the information revolution frees information in the sense that it may be readily transferred without the demand for linkage to paper or any other signifier of storage device.” [ Lloyd, pp.495-6, 2004 ]

A comprehensive Green Paper [ 1 ] was published by the European Commission in 1995 which led finally to the acceptance in May 2001 of the Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society [ 2 ] ( “the Directive” ) . This has led in this legal power to the execution ( albeit after the deadline set by the Directive ) of the Copyright and Related Rights Regulations 2003 ( in force 31 October 2003 ) which makes a figure of alterations to the antecedently pre-eminent domestic statute law, the Copyright, Designs and Patents Act 1988. This notwithstanding, important concerns remain as to certain facets of the Directive. In peculiar, it is to be doubted whether the EU’s Information Society programme has been successful or is even of itself capable of turn toing the issue of copyright protection in the digital age.

The purpose of the Directive was baronial: foremost, it sought to convey the Community into line with the WIPO ‘Internet Treaties’ ; 2nd, it sought to harmonize assorted facets of right of first publication jurisprudence within the Community. However, it has emerged as arguably “neither fish nor fowl” . The ambivalent purposes of the step are reflected by Recital 5 of the Directive:

“Technological development has multiplied and diversified the vectors for creative activity, production and development. While no new constructs for the protection of rational belongings are needed, the current jurisprudence on right of first publication and related rights should be adapted and supplemented to react adequately to economic worlds such as new signifiers of exploitation.”

While the above clearly acknowledges the impact of technological development, it lamely and complacently concludes that bing rational belongings protection is mostly equal. The extremist impact of the cyberspace with its debut of hitherto unanticipated methods of copying is relegated in importance to “new signifiers of exploitation” which in their bend are categorised simply as modern-day “economic realities” instead than recognised as the radical outgrowth of entirely new challenges to old constructs of right of first publication protection.

On a procedural degree, Hugenholtz is scathing:

“The consequence of this over-ambitious project has been predictable. The Directive is a severely drafted, compromise-ridden piece of statute law. It does non increase ‘legal certainty’…but alternatively creates new uncertainnesss by utilizing obscure and in topographic points about unintelligible language.” [ Hugenholtz, p.501, 2000 ]

Worse still, is the dilution of the commissariats in Respect of Reproduction Right in Article 2 by the consequence of Article 5. Article 2 requires Member States to supply for the sole right to empower or forbid reproduction of literary plants, arrested developments of public presentations, phonograms, movies and broadcasts. However, Article 5 allows States to supply for exclusions or restrictions to the reproduction right in Article 2 in an extended scope of state of affairss. With the exclusion of those referred to in Art. 5 ( 1 ) , acceptance of such exclusions is optional. It is imaginable hence that the ultimate impact upon national jurisprudence may be really limited with “cherry picking” by Member States so as to do as small perturbation as possible to their bing right of first publication Torahs. Hugenholtz (ibid. ) expresses the position that in footings of the professed purpose of harmonization, this latitude renders the Directive a “total failure” .

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Further, there is range for considerable concern as to the substantial impact of certain facets of the Directive where it is implemented domestically. There is a potentially annihilating impact upon package development. At present, ss.50B and 296A of the Copyright, Designs and Patents Act 1988 permit’s the “reverse-engineering of copyrighted package programmes in order to let the development of an interoperable merchandise. While this has hitherto been regarded as extremely desirable, the fright must be that in future package companies with a dominant place in the market will raise copyright protection to forestall the necessary decompilation of their plan in order to “squeeze out” rivals. While this might at first sight seem notional, it is already a commercial world. In America, a comparable proviso was invoked by Sony in necessitating a coder of a robotic Canis familiaris to take codification from his web site on the land that the release of that codification had efficaciously infringed their right of first publication [ 3 ] .

Even Article 5 ( 1 ) which is referred to with blessing in the procedural context of exclusions above is non immune from unfavorable judgment. The issue raised is that of alleged ‘caching’ . Article 5 provides:

“1. Impermanent Acts of the Apostless of reproduction referred to in Article 2, which are transeunt or incidental [ and ] an built-in an indispensable portion of a technological procedure and whose exclusive intent is to enable:

( a ) a transmittal in a web between 3rd parties by an intermediary, or

( B ) a lawful usage

of a work or other capable affair to be made, and which have no independent economic significanceshall[ accent supplied ] be exempted from the reproduction right provided for in Article 2.”

The practical application of this is explained in portion of Recital 33:

“…this exclusion should include Acts of the Apostless which enable browse every bit good as Acts of the Apostless of hoarding to take topographic point, including those which enable transmittal systems to work expeditiously, provided that the mediator does non modify the information and does non interfere with the lawful usage of engineering, widely recognised and used by industry, to obtain informations on the usage of the information.”

This seems on its face noncontroversial. However, when one considers the world of cyberspace usage, the screening of information on a web page will about necessarily affect the devising of a transcript on the viewer’s ain equipment. In this context, the inclusion in the Article of the phrase “integral and essential” appears hence to add nil to the protection therefore afforded. By contrast, while the pattern of caching is intended to be exempted from prohibition, this may in its bend autumn foul of the proviso if it is non to be regarded as “essential” .

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Of peculiar concern to Universities, libraries and the handicapped is the ability to command a file format. This means that the published of electronic books will be able to enforce the usage of its ain reader upon the possible user of such a resource. Keeping the needed scope of readers will be beyond the capacity of most such establishments and will cut down if non extinguish the ability to do transcripts of books for private survey. As to the impact upon the handicapped, the blind, for illustration, will be constrained in footings of the usage of devices which render such stuffs into accessible formats. Such concerns stem from the commissariats of Article 6 ( 1 ) which requires Member States to “provide equal legal protection against the circumvention of any effectual technological steps, which the individual concerned carries out in the cognition, or with sensible evidences to cognize, that he or she is prosecuting that objective” . Technological steps are defined by Art. 6 ( 3 ) as:

“…any engineering, device or constituent that, in the normal class of its operation is designed to forestall or curtail Acts of the Apostless, in respects of plants or other subject-matter, which are non authorised by the right holder…” .

The execution of these and eventful commissariats by the 2003 Regulations (supra) consequence in the new s.296ZB of the 1988 Act which makes it an offense to sell, possess, distribute etc. “and device, merchandise or constituent which is chiefly designed, produced or adapted for the intent of enabling or easing the circumvention of effectual technological measures” . This is capable of taking to absurdness: if one takes the illustration of a optical maser which might be used to reproduce a holograph, it might be argued that this, if non “primarily produced” could be at least “adapted” for the illicit procedure of circumvention in which instance ownership of such a device would go an offense!

Less airily, such ordinance is capable of holding a important impact upon copying for private intents. Traditionally, there has ever existed a tenseness within rational belongings jurisprudence as a consequence of the development of certain types of equipment ( see the now ancient resistance to the debut of duplicate deck cassette recording equipments. However, across the whole scope of possible circumvention activities, the countenances imposed by the Directive are Draconian. In a paper for the Foundation for Information Policy Research, Anderson describes a scenario in which even before a substantial hearing took topographic point, an independent games maker being pursued by a big corporation such as Sony for doing compatible memory cartridges might be apt to hold their stock seized under Art.8, forced to unwrap correspondence with their providers under Art.9 or have their bank histories frozen under Art.11. On a similar rule to that discussed above, the equipment used to fabricate the cartridges could be banned as an illegal proficient device under Art.21.

In decision, it must be conceded that the Information Society Programme of the European Union is a huge project the objects of which are admirable. The gestation period of the Directive was long and at times Byzantine. ( It might be observed that there was a grade of otiose labor in this procedure since the WIPO Internet Treaties were already in topographic point and the development of the Directive could be argued to hold involved a great trade of duplicate with the terminal consequence that the announcement of the Directive and its acceptance by Member States was unnecessarily delayed in the procedure. Perforce in a entry of this length, it is non possible to make more than high spot certain of the more blazing anomalousnesss and lacks in the proviso. It is submitted that these in themselves are sufficient to give considerable cause for concern and represent peculiar illustrations of the trouble of passing for right of first publication in the digital age. However, such illustrations are simply symptoms of a much more cardinal unease. Lloyd, at the beginning hereof, likens the displacement from the construct of right of first publication that subsisted up to the terminal of the 20th century to the rules which should be applied to internet engineering to the extremist passage that took topographic point from the unwritten tradition to a document-based system with the innovation of the printing imperativeness. Adopting this illustration, merely as the distribution of printed plants required the development of an wholly new set of hitherto unfamiliar legal rules in order to protect the rights of the conceivers of plants, the coming of the information society requires merely such a cardinal revaluation. It is in this regard that commissariats such as the EC Directive have failed. The Directive and the domestic statute law that flows from it can be characterised as a gawky effort to “bolt-on” established rational belongings rules to a novel and foreign engineering. This is why so much of the current copyright statute law as it applies to the Information Superhighway is at best labored and at worst impracticable. The cherished chance to develop a new legal government for the protection of originality in a new epoch has been missed.

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