Copyright in the Information Society – An Opportunity Missed The advent of the so-called â€˜Information Superhighwayâ€™ has thrown into sharp focus the importance of copyright and its protection of, in particular, works of literary, artistic and musical merit. Lloyd opines: â€œIf the invention of the printing press resulted in a move from an oral to a written tradition at the price 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 need for linkage to paper or any other form of storage device.â€ [Lloyd, pp.495-6, 2004] A comprehensive Green Paper was published by the European Commission in 1995 which led eventually to the adoption in May 2001 of the Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society (â€œthe Directiveâ€). This has led in this jurisdiction to the implementation (albeit after the deadline set by the Directive) of the Copyright and Related Rights Regulations 2003 (in force 31 October 2003) which makes a number of changes to the previously pre-eminent domestic legislation, the Copyright, Designs and Patents Act 1988.
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This notwithstanding, significant concerns remain as to certain aspects of the Directive. In particular, it is to be doubted whether the EUâ€™s Information Society programme has been successful or is even of itself capable of addressing the issue of copyright protection in the digital age. The aim of the Directive was noble: first, it sought to bring the Community into line with the WIPO â€˜Internet Treatiesâ€™; second, it sought to harmonise various aspects of copyright law within the Community. However, it has emerged as arguably â€œneither fish nor fowlâ€. The ambivalent aims of the measure are reflected by Recital 5 of the Directive: â€œTechnological development has multiplied and diversified the vectors for creation, production and exploitation. While no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation.â€ While the above clearly acknowledges the impact of technological development, it lamely and complacently concludes that existing intellectual property protection is largely adequate. The radical impact of the internet with its introduction of hitherto unforeseen methods of copying is relegated in importance to â€œnew forms of exploitationâ€ which in their turn are categorised merely as contemporary â€œeconomic realitiesâ€ rather than recognised as the revolutionary emergence of wholly new challenges to previous concepts of copyright protection. On a procedural level, Hugenholtz is scathing: â€œThe result of this over-ambitious undertaking has been predictable. The Directive is a badly drafted, compromise-ridden piece of legislation. It does not increase â€˜legal certaintyâ€™â€¦but instead creates new uncertainties by using vague and in places almost unintelligible language.â€ [Hugenholtz, p.501, 2000] Worse still, is the dilution of the provisions in Respect of Reproduction Right in Article 2 by the effect of Article 5. Article 2 requires Member States to provide for the exclusive right to authorise or prohibit reproduction of literary works, fixations of performances, phonograms, films and broadcasts. However, Article 5 allows States to provide for exceptions or limitations to the reproduction right in Article 2 in an extensive range of situations. With the exception of those referred to in Art. 5(1), adoption of such exceptions is optional. It is conceivable therefore that the ultimate impact upon national law may be very limited with â€œcherry pickingâ€ by Member States so as to cause as little disturbance as possible to their existing copyright laws. Hugenholtz (ibid.) expresses the view that in terms of the avowed aim of harmonisation, this latitude renders the Directive a â€œtotal failureâ€. Further, there is scope for considerable concern as to the substantive impact of certain aspects of the Directive where it is implemented domestically. There is a potentially devastating impact upon software development. At present, ss.50B and 296A of the Copyright, Designs and Patents Act 1988 permitâ€™s the â€œreverse-engineering of copyrighted software programmes in order to allow the development of an interoperable product. While this has hitherto been regarded as highly desirable, the fear must exist that in future software companies with a dominant position in the market will invoke copyright protection to prevent the necessary decompilation of their program in order to â€œsqueeze outâ€ competitors. While this might at first sight seem fanciful, it is already a commercial reality. In America, a comparable provision was invoked by Sony in requiring a programmer of a robotic dog to remove code from his website on the ground that the release of that code had effectively infringed their copyright. Even Article 5(1) which is referred to with approval in the procedural context of exceptions above is not immune from criticism. The issue raised is that of so-called â€˜cachingâ€™. Article 5 provides: â€œ1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral an essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject matter to be made, and which have no independent economic significance shall [emphasis supplied] be exempted from the reproduction right provided for in Article 2.â€ The practical application of this is explained in part of Recital 33: â€œâ€¦this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information.â€ This seems on its face uncontroversial. However, when one considers the reality of internet use, the viewing of information on a web page will almost inevitably involve the making of a copy on the viewerâ€™s own equipment. In this context, the inclusion in the Article of the phrase â€œintegral and essentialâ€ appears therefore to add nothing to the protection thus afforded. By contrast, while the practice of caching is intended to be exempted from prohibition, this may in its turn fall foul of the provision if it is not to be regarded as â€œessentialâ€. Of particular concern to Universities, libraries and the disabled is the ability to control a file format. This means that the published of electronic books will be able to impose the use of its own reader upon the potential user of such a resource. Maintaining the requisite range of readers will be beyond the capacity of most such institutions and will reduce if not eliminate the ability to make copies of books for private study. As to the impact upon the disabled, the blind, for example, will be constrained in terms of the use of devices which render such materials into accessible formats. Such concerns stem from the provisions of Article 6(1) which requires Member States to â€œprovide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objectiveâ€. Technological measures are defined by Art. 6(3) as: â€œâ€¦any technology, device or component that, in the normal course of its operation is designed to prevent or restrict acts, in respects of works or other subject-matter, which are not authorised by the right holderâ€¦â€. The implementation of these and consequential provisions by the 2003 Regulations (supra) result in the new s.296ZB of the 1988 Act which makes it an offence to sell, possess, distribute etc. â€œand device, product or component which is primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of effective technological measuresâ€. This is capable of leading to absurdity: if one takes the example of a laser which might be used to reproduce a hologram, it might be argued that this, if not â€œprimarily producedâ€ could be at least â€œadaptedâ€ for the illicit process of circumvention in which case possession of such a device would become an offence! Less flippantly, such regulation is capable of having a significant impact upon copying for private purposes. Traditionally, there has always existed a tension within intellectual property law as a result of the development of certain types of equipment (consider the now ancient opposition to the introduction of twin deck cassette recorders. However, across the whole range of potential circumvention activities, the sanctions 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 substantive hearing took place, an independent games manufacturer being pursued by a large corporation such as Sony for making compatible memory cartridges might be liable to have their stock seized under Art.8, forced to disclose correspondence with their suppliers under Art.9 or have their bank accounts frozen under Art.11. On a similar principle to that discussed above, the equipment used to manufacture the cartridges could be banned as an illegal technical device under Art.21. In conclusion, it must be conceded that the Information Society Programme of the European Union is a vast undertaking the objects of which are admirable. The gestation period of the Directive was long and at times tortuous. (It might be observed that there was a degree of wasted labour in this process since the WIPO Internet Treaties were already in place and the development of the Directive could be argued to have involved a great deal of duplication with the end result that the promulgation of the Directive and its adoption by Member States was unnecessarily delayed in the process. Perforce in a submission of this length, it is not possible to do more than highlight certain of the more glaring anomalies and deficiencies in the provision. It is submitted that these in themselves are sufficient to give considerable cause for concern and represent particular examples of the difficulty of legislating for copyright in the digital age. However, such examples are merely symptoms of a much more fundamental malaise. Lloyd, at the outset hereof, likens the shift from the concept of copyright that subsisted up to the end of the twentieth century to the principles which should be applied to internet technology to the radical transition that took place from the oral tradition to a document-based system with the invention of the printing press. Adopting this example, just as the distribution of printed works required the development of an entirely new set of hitherto unfamiliar legal principles in order to protect the rights of the originators of works, the advent of the information society requires just such a fundamental reappraisal. It is in this respect that provisions such as the EC Directive have failed. The Directive and the domestic legislation that flows from it can be characterised as a clumsy attempt to â€œbolt-onâ€ established intellectual property principles to a novel and alien technology. This is why so much of the current copyright legislation as it applies to the Information Superhighway is at best strained and at worst unworkable. The precious opportunity to develop a new legal regime for the protection of originality in a new era has been missed. Bibliography Anderson. A., â€œThe Draft IPR Enforcement Directive – A Threat to Competition and Libertyâ€, www.fipr.org/copyright/draft-ipr-enforce.html Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, 2001/29/EC, 22 May 2001 European Commission, Communication on Copyright and Related Rights in the Information Society, www.europa.eu.int/rapid/pressReleasesAction.do European Commission, Copyright and Related Rights in the Information Society, 19.07.1995 COM 95 final Europeâ€™s Information Society Thematic Portal, www.europa.eu.int/information_society/text_en.html Torremans, P,  Holyoak & Torremans Intellectual Property Law, OUP, Oxford Hugenholtz, B., â€œWhy the Copyright Directive is Unimportant and Possibly Invalidâ€, EIPR 11, pp.501-502 Lloyd, I.,  Information Technology Law, OUP, Oxford Lloyd, I.,  Legal Aspects of the Information Society, Butterworths, London Midgley, J., â€œCritique of the Proposed UK Implementation of the EU Copyright Directiveâ€ www.ukcdr.org/issues/eucd/ukimpl/critique_uk_impl.html The Patent Office, â€œThe Copyright Directive (2001/29/EC – UK Implementationâ€, www.patent.gov.uk/about/consultations/eccopyright/impact.html Reed, C.  Internet Law: Text and Materials, Butterworths, London www.europa.eu.int/comm/dgs/information_society/text_en.html
 COM (95) 382 final  Directive 2001/29/EC  See â€œTeaching Robot Dogs New Tricksâ€, Scientific American, Jan 21, 2002 and discussion in Midgley, J., â€œCritique of the Proposed UK Implementation of the EU Copyright Directiveâ€ www.ukcdr.org/issues/eucd/ukimpl/critique_uk_impl.html
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