CONTEMPORARY DEBATES IN HYPERMEDIA
copyright or the right to copy?
alternatives to intellectual property protection online
Christine Zmoelnig 2000
As we enter the Information Economy, intellectual property is becoming one of the most important exchangeable commodities of our society. The Internet is considered to be the most efficient means for facilitating the use, storage, transfer and exchange of information.This has led to an increased commercialization of the World Wide Web during the past years, as thousands of businesses worldwide have sought to establish an online presence. Similarly, a broad range of cultural and educational materials can be found on the Internet ranging from television shows, movies and news items through to academic and professional journals.
As more and more people have started to go online, more and more valuable content is being made accessible to people via the Internet and the World Wide Web. While freedom is considered one of the most important qualities of the net by some, unlimited access to information is at the same time seen as a threat to authors, musicians and publishers, many of whom have become concerned about the loss of control over their online works, and hence loss of their income.
It has become possible for everybody to obtain vast amounts of material on the Internet. As an example for this, the development of MP3 technology has enabled people to listen to, download, transfer and exchange audio files whilst online without having to pay for the music files. The increasing popularity and widespread of MP3 technology is expected to revolutionise and change completely the music industry.
But not only the music industry and the role of record labels will change, also the situation of the creators will change. On the one hand, the internet is a liberating medium also for them, as musicians are no longer dependent on channels like record labels to publish. On the other hand, the labour of musicians, and more generally of creatives and intellectuals, is not valued directly anymore, a fact that threatens creative production conditions and the lives of creatives.
Initially created by University-funded academics, the giveaway model of the internet is a big challenge for intellectuals and creatives, as copyright is becoming obsolete. New ways and means of payment, and maybe even new laws of regulation, will have to be found. A number of people have shown a certain apprehension or reluctance to using the Internet as a means for distributing their works, as traditional intellectual property law cannot ensure content producers and publishers protection of their works online anymore.
In the first place, as Andy Johnson-Laird1 has argued, the technical nature of the Internet has essentially transformed it into a global copying machine, as it provides fast and easy distribution of information for everybody. People have become able to make copies of works and disseminate them not only to one, but to many other persons, even at the same time, and at virtually no cost. Furthermore there is the fact that the World Wide Web as a distribution media makes it increasingly difficult to monitor and enforce intellectual property laws. As Lawrence Lessig has put it: The threat posed by technology is maximal, while the protection promised by law is minimal.2
Accordingly, discussions about the utility of the current intellectual property regime and its applicability to Cyberspace have been raised. Furthermore, several alternatives to the traditional intellectual property laws as a means of protecting online works have been developed and established, some of which this essay will examine and discuss in more detail lateron.
The most popular amongst these alternatives are contractual and technological solutions which seek to place limits on the permissable uses of online material. Over the past few years several corporations, including IBM, Xerox and Microsoft, have developed software and hardware that enable publishers to specify terms and conditions for digital works and to control how they can be used and consumed, in so-called 'trusted systems'.
Closely related to this in practice, although ideologically completely different, is the Open Source and Free Software Movements which seek to capture the value of intellectual property by freely distributing it and then relying on network effects and ethics to support their position. Another commercial development that has become increasingly dominant in the American market are Online Patents which ensure special e-commerce systems a unique monopoly status. Following the American model, Online Patents now successfully enter the European market.
Finally, there have also been some attempts to create entirely new forms of intellectual property protection to deal with the unique problems raised by the Internet.
It is these models and alternatives that shall be examined and discussed in some detail in this essay.
What is copyright?
Copyright is a property right installed to protect ideas rather that "real" property. In practice, a creator of a piece of art, literature, film etc. automatically owns the copyright automatically when creating a piece of work.
The origins of intellectual property law go back to the ideas of european philosophers like John Locke and Georg W. F. Hegel.
John Locke, an English philosopher of the 17th century, defined property in his labour theory - by investing human labour, property is gained. In his Essay "Two Treatises of Government"3, an early pro-democratic work, Locke argues whatever a man "mixes his labour with" shall be his to use. Property is seen as a commodity created by human labour in Lockeıs theory, which still forms the core of the U.K.ıs intellectual property law.
The german philosopher Hegel4 defines intellectual property in the 19th century, influenced by the French Revolution, as a natural, moral right of the author. The image of the autonomous author who is defined by her creations and ideas, is essential to Hegelıs theory.
European Intellectual property law today is still based on the principle of moral rightsı. Yet in the Anglo-Saxon tradition a work of creation is in essence a commodity, to be freely traded and under the control of its owner. The concept of 'moral rights' has been grafted onto statute to varying degrees. It may be for this reason that moral rights are still perceived as esoteric in the UK and the USA.5
Private property is protected against theft or other damages to the property owner. Private property rights therefore are exclusive to the owner of the property.6
Copyright aims to protect intellectual property - the ideas one owns. But as a matter of fact, ideas fluctuate freely, once they are given away. Several people can own one idea without harming the originator of an idea. Ideas are meant to be shared...
Copyright furthermore aims to protect the authorship in a way that authors are secured the rights and benefits for their work, once it gets published and sold, a fact that in return gives authors incentives to produce further work.
Fair Use constitutes an important limitation to the authorıs copyright: it is the right to use copyrighted material in order to criticise it, or generally, to develop further ideas based on it.7
Essentially, Fair Use that has been able to keep a balance between unlimited copyright execution by publishers and authors and consumerıs rights to access information over the past century. This balance seems to have shifted on the internet.
A brief history of copyright law
1710 Statute of Anne
Copyright law as we know it began in England in 1710 when the British Parliament enacted the Statute of Anne. The Statute of Anne contained, for the first time in copyright law, legal protection for consumers of copyrighted works, preventing a monopoly on the part of the booksellers.
It also created a 'public domain' for literature by requiring the creation of a new work in order to obtain a copyright, by limiting the length of term of a copyright, and by limiting the rights granted to the copyright owner (print, publish, and sell) so that once purchased the copyright owner does not control the use of the work.
The statute also provided an author's copyright - although the benefit to authors was minimal because in order to be paid for a work, an author had to assign the work to a bookseller or publisher.8
1886 Berne Convention
"The goals of the Berne Convention provide the basis for mutual recognition of copyright between sovereign nations in foreign works and promote development of international norms with regard to copyright protection".9
The Convention was a diplomatic effort of European nations to establish a uniform copyright law. It has been revised several times since 1886.
In 1908, the Berlin Act set the duration of copyright at life of the author plus 50 years, expanded the scope of the act to include newer technologies, and prohibited formalities as a prerequisite of copyright protection.
In 1928, the Rome Act first recognized the moral rights of authors and artists - giving them the right to object to modifications or to the destruction of a work in a way that might prejudice or decrease the artist's reputation.
Most European Countries, as well as the United States and many others today are joining the Berne Convention Copyright Act.
The World Intellectual Property Organization (WIPO)
is an international organization dedicated to Intellectual property rights protection. The WIPO is based on the principles of the Berne Convention, and became a specialized agency of the United Nations system of organizations in 1974.
Today it constitutes of 171 member countries, and is addressing a number of proposals for changes10 to meet the global information infrastructure.
Analysing the 'nature' of the net.
What makes it so different?The internet is a network of computers spread all over the world, connected by data cables, equipped with the software necessary to exchange data files between them.
Historically, the internet was created as a military research network, aimed to share scientific information around the world, and engineered in a way that it would resist global catastrophies (like nuclear wars). From its earliest days, the free exchange of information has therefore been firmly embedded within the technologies and social mores of cyberspace.11
The data that is being exchanged over the internet goes the way of least resistance when being sent over the internet. Data travels freely on the net along undetermined paths. Geographically, the World Wide Web slices through physical boundaries of countries and states. Borders do not exist on the Net.
Copies of data are not being sent over the net once, but in unlimited amounts. An original data file does not exist once, but infinitively often on the Internet. Johnson-Laird therefore calls the Net an "electronic model of prostitution" as well as a "global copying machine" 12. The process of copying cannot be controlled, neither can channels of redistribution be tracked down.
Technically, every act within cyberspace involves copying material from one computer to another. Once the first copy of a piece of information is placed on the Net, the cost of making each extra copy is almost zero. The architecture of the system presupposes that multiple copies of documents can easily be cached around the network.13
Tracking down the originator of a message posted to a bulletin board, for example, and deciding whether the originator of the message, or the ISP, or the owner of the server is liable for the content of this message, is a common jurisdictional problem.
The metaphor of the 'Information Superhighway' is valid for the so-called 'backbones' of the net: big fibreglass-cables that have been laid by large corporations (e.g. IBM, AOL in the U.S.) and academic institutions. Most of the internet traffic gets channelled into these backbones.
Cache servers are nodes regulating internet traffic. Mostly country-specific, they store and update copies of data. Practically this means that a popupar U.S. website usually is not directly accessed from the U.K. to the U.S. via the Antlantic, but from a local U.K. cache server storing the data. This way connections can be faster and data traffic is reduced.
Large amounts of data are split into small packets before being sent - another important feature of internet. This means that large data-files are sent in several smaller data-packets, via different internet-routes, to the end-userıs computer.
The internet is also the largest physical structure ever built. It is hard to tell how big it really is, or how many users there are - physically measuring the internet has become impossible.
Communication on the Net takes place without any knowledge about where persons are on the planet, or what their sex, social status etc. is. Identity is optional, one is essentially anonymous when communicating over the Internet. Another important characteristic is the way people get access to the Net. ğEntrance feesĞ paid to Internet Service Providers are often flat-fee based, so that access is essentially free and unlimited once the fee has been paid. This way the net has become a free global distribution tool for everybody.
Different from other media, the internet is a two-way communication medium, as Richard Barbrook points out in "Hypermedia Freedom": Most people want to meet other people within cyberspace. Unlike the existing electronic media, the Net is not centred on the one-way flow of communications from a limited number of transmitters. On the contrary, hypermedia is a two-way form of communications where everybody is both a receiver and a transmitter.14
Similarly, Lawrence Lessig15 describes the critical difference in the design of the internet as its ³end-to-end² architecture. Initially a technical principle, end-to-end soon became an important enabling feature of the net, giving all Internet-users the same rights to publish and develop. End-to-end enabled innovation on the net, avoiding that any party, government or corporation could gain control over the Internet.
The net therefore is often seen as a self-regulating, self-healing environment that cannot be controlled. It has no borders and therefore is an environment free of laws.
Barbrook describes the Internet as a global gift-economy, a giveaway model based on the idea of sharing information freely as opposed to selling information as a commodity. ...the academic gift economy welcomes technologies which improve the availability of data. Users should always be able to obtain and manipulate information with the minimum of impediments. The design of the Net therefore assumes that intellectual property is technically and socially obsolete.16
It becomes apparent that the previously described characteristics of the internet as a new medium for sharing information will require intellectual property law on the internet to be treated differently. Many have argued that the code, as the underlying structure of the net, will play an important role in future systems for the protection of intellectual property.
Code can, and increasingly will, displace law as the primary defense of intellectual property in cyberspace. Private fences, not public law. 17
What alternative models of data-protection on the net should be established, and who will suffer or benefit from these developments in the end, are the issues that will be discussed in more detail furtheron in this essay.
Alternatives to Intellectual Property protection online, an overview.
A patent is a government issued grant which excludes others from making, using, offering for sale, or selling the invention for a period of 20 years, measured from the filing date of the patent application. Patents are released geographically, and have to be obtained for each country individually.
The main requirements for obtaining a patent are: novelty, originality, non-obviousness to experts in the field, and that the invention must not be known by others before the date of application.
Software, for example, raises special patenting issues. As programming languages define strict patterns for how to solve programming problems, it is more the visual look of the code than the code itself that can be protected. Especially in America, the trend towards patenting e-commerce related software can be seen in the exploding numbers of software patents (see below).
Internet patents protect a particular way of doing business online. The number of Internet-related patents granted by the American patent office rose from 165 in 1995 to 2,193 in 1998.18 At the time of writing, it is only recently that Internet Patents have been successfully introduced in the European e-commerce market.
It has been argued19 that patents are slowing down innovation, leading to big market control of some companies that can afford to buy patents by removing important technology from the public domain.
As opposed to this, it has also been argued by lawyers like Mark A. Haynes20 that patents generally are still the better choice for market innovation than copyright. Giving the example of Microsoft, who own the copyright on the Windows operating system, Haynes describes how Microsoft keeps releasing versions of Windows that do not essenstially differ from the previous versions, due to their monopoly status gained by copyright. He compares this development with the Microprocessor market, where Intel is the market leader due to their patent on the Intel chip. Intel is forced to invest large sums into development, though, because of strong market competition. As a patent owner, Intel is even allowed to exchange and trade patents with other corporations. Competitors are forced to innovate and come up with ideas for better technologies in the fight for market domination. Haynes describes such a system as being economically healthier than a monopoly system caused by copyright.
Mark Stefik, a researcher at Xerox Parc, calls his favoured digital protection method 'trusted systems'21.
Trusted systems allow publishers to specify the required security level to safeguard a document or video. The most valuable digital properties might be protected by systems that detect any tampering, set off alarms and erase the information inside. At an intermediate level, a trusted system would block a nonexpert attack with a simple password scheme. And at a lower security level, it would offer few obstacles to infringers but would mark digital works so that their source could be traced (such digital watermarking is now embedded in some image-manipulation software).22
Such systems have the potential to enable intellectual property owners to gain greater protection than that which has traditionally been afforded to them by law.
The key to trusted systems is their ability to follow certain rules. Those rules, called usage rights, can specify terms and conditions under which a certain digital work can be used. Trusted computers then could refuse to make an unauthorized copy, or display an image for a user who has not paid for these usage rights.
Practically, encrypted messages are being sent between servers, and only by bying a digital certificate, the end-userıs server will be able to decrypt the code for downloading a piece of information.
Other systems may contain time-stamps that come with the information and expire after a certain period of time. These systems make sure the usage rights that have been sold to a user expire after an agreed time.
Trusted systems can also place identifying watermarks that make it possible to track down unauthorized duplications ort alterations to a document. Watermarks maintain a record of each work, the name of the purchaser and a code for the devices on which they are played. This information can be hidden - in the white space and grey shades of a text image, for example. As such, the identifying information would be essentially invisible to lawful consumers - and unremovable by would-be infingers. 23
Finally asking why consumers would want trusted systems to be implemented in digital information, Stefik argues that special kinds of information otherwise would never get published on the Internet, as publishers seek to impose methods of charging for digitally published works online.
Furthermore, consumers wouldnıt have to choose to use trusted systems but could as well download freely available information on the net. In this sense, trusted systems can even be seen as free in the sense of optional - following Stefikıs arguments in favour of such systems at an online debate with critics in The Atlantic Monthly.24
A negative scenario of trusted systems, as drawn by Lawrence Lessig, 25 is the unwanted side-effect of surveillance to the technology, a control then owned by publishers. Such private protection systems threaten to replace democratic laws and commodify the access to information.
The Open Source Movement
Whilst the majority of online content providers have increasingly sought to rely on contractual and technological means to protect their works, a smaller although increasingly growing number have openly eschewed such methods. Collectively known as the Open Source Movement,these people believe that the underlying source code of computer software, which is fundamental to the furthering of computer science, should be both freely available and freely modifiable.
The use of the word 'free' in this context refers to non-proprietary as opposed to non-commercial, as Richard Stallman26 puts it: Think "free speech", not "free beer".
In distributing its software freely, the Open Source Movement believes it has at least two major advantages over traditional commercially developed software. Firstly, it is claimed that open-sourced software is both of a higher quality than commercially developed software and that any program bugs will be discovered and fixed at a much faster rate. Secondly, it is thought that products based on open-sourced software will be relatively inexpensive compared to traditional commercial software.
The rationale behind the proprietary method of software development is to keep source code confidential so that only the owner can realize its value. By releasing its source code, the Open Source Movement is thus rejecting this economic model in favour of an alternative one.
Perhaps the most famous advocate of this new model is Esther Dyson27 who has argued that the Information Age has ushered in a new economic order in which content will essentially be free, serving as advertising for services and relationships from which income will ultimately be derived.
Whilst the viability of this alternative economic model has yet to be seriously tested, the recent success of Linux 28 based companies such as Red Hat, and the decision by Netscape Communications29 to release the source code of its Internet browser may suggest that it is a workeable model.
It is worth noting that, contrary to initial impressions, the Open Source Movement does not represent an abandonment of intellectual property or contractual protections. Rather, intellectual property and contract are central to the movement for in order to stay free, software must be copyrighted and licensed.30
Eric S. Raymond, one of the founders of the Open Source Movement and ³accidental revolutionary² by self-definition, claims that all software code should be freely available and modifiable.31 In his book "The Cathedral and the bazaar"32 Raymond describes how Open Source could be a business model of the future. This book is said to have made Netscape release the source code of their browser. The most famous example for the success of Open Source development is Linux,33 the Operating system that was collaboratively developed by a loose confederation of hundreds of programmers worldwide, over the internet, and is today the third-most used operating system worldwide.
The Free Software Foundation
Richard Stallman, founder of the Free Software Foundation and initiator of the GNU software project, goes another step further. When he speaks of free, he means not only "free of charge", but also free in a liberated and ethical sense.
Free software is software that comes with permission for anyone to use, copy, and distribute, either verbatim or with modifications, either gratis or for a fee. In particular, this means that source code must be available.34 He points out that he does not agree with some of the views of the Open Source Movement, and especially does not want Free Software to be seen as a business model.
The Free Software Foundation (FSF) is dedicated to eliminating restrictions on copying, redistribution, understanding, and modification of computer programs. We do this by promoting the development and use of free software in all areas of computing...35
Stallman invented a distribution term called copyleft, which basically makes sure a piece of free software cannot be turned into proprietary software anymore. Copyleft uses copyright law, but flips it over to serve the opposite of its usual purpose: instead of a means of privatizing software, it becomes a means of keeping software free.
Information wants to be free - because it is now so easy to copy and distribute casually - and information wants to be expensive - because in an Information Age, nothing is so valuable as the right information at the right time.36
The social background that enabled a gift economy to arise on the net, and the social structures that created an electronic 'agora' (greek word for a public meeting place) of ideas and goods, are opposed to conservative forces that want to keep the idea of copyright alive, but also to the fears of creators to lose influence and control over their works online.
It is not easy to decide which side to take in the discussion about copyright online, and whether it should be enforced at all. As we heard, it has become technically impossible to do so, which has caused technological developments like trusted systems and watermarking technologies. Yet there is the dilemma of the artist and contributor to the online community whose work and labour somehow will have to be rewarded in future.
Whether the solution is to impose government regulation and change the law in favour of protecting artist's work, possibly accompanied by a more transparent and also surveillable internet, or whether the industry should simply be allowed to set up private standards of property protection online, is still to be seen.
The state will play a crucial role in this decision, as governments are not only the potential regulators, but also the initial funders of the academic gift-economy on the internet. Governments will have to think of ways to impose provisional payments upon commercial institutions, for exmaple - in order to keep a balance between contribution and consumption of information online that all members of society can benefit from. 37
Richard Barbrook offers a possible solution arguing for the social power of the citizens of cyberspace that will prevent technology and the state alone from controlling the Internet, and by pointing out the sheer impossibility of monitoring all communication online:
Contrary to the predictions of the pessimists, it is possible to win the struggle against both the political and economic censorship of cyberspace. Although the state can - and should - prosecute the small minority of paedophiles and fascists, the resources needed to spy on everyone's email and Web sites will make the imposition of moral puritanism very difficult to enforce. Even with sophisticated censorship programs, the sheer volume of Net traffic should eventually overwhelm even a well-funded surveillance body. While it might just about be possible to regulate the output of thousands of radio and television stations, the sheer cost of vetting many millions of users logging onto a global network of online services would be prohibitive. The social nature of hypermedia is the best defence of the individual's right of freedom of expression.38
1. Andy Johnson-Laird, The Anatomy of the Internet meets the body of the Law, in: University of Dayton Law Review (Dayton, Spring 1997) 22 U. Dayton L. Rev. 465
2. Lawrence Lessig, Code and the Commons (New York, March 1999)
3. John Locke, Two Treatises of Government. (London 1690)
4. G.W.F. Hegel, The Philosophy of Right. (Oxford 1967 / 1821)
5. Mike Holderness, Moral Rights and Authors' Rights: The Keys to the Information Age. Journal of Information, Law and Technology (February 1998)
6. Lawrence Lessig, Code and other Laws in Cyberspace. p 125.
7. Lawrence Lessig, Code and other Laws in Cyberspace., p 134.
8. Patricia Brennan, Timeline: A History of Copyright in the U.S.
9. WIPO website
10. Patricia Brennan, Timeline: A History of Copyright in the U.S.
11. Richard Barbrook, The Hi-Tech Gift Economy. referring to: Mark Geise, From ARPAnet to the Internet: A cultural clash and its implications in framing the debate on the information superhighway. In: Lance Strate, Ron Jacobson and Stephanie B. Gibson (editors), Communications and Cyberspace. (Hampton Press 1996)
12. Andy Johnson Laird, as above.
13. Richard Barbrook, The Hi-Tech Gift Economy.
14. Richard Barbrook, Hypermedia Freedom.
15. Lawrence Lessig, Innovation, Regulation and The Internet, The American Prospect vol. 11 no. 10 (March 27-April 10 2000)
16. Richard Barbrook, The Hi-Tech Gift Economy.
17. Lawrence Lessig, Code and other Laws in Cyberspace, p 126.
18. Business Method Patents Online
19 Steven Levy, Random Access. The Great Amazon Patent Debate. Newsweek Online (March 13, 2000)
20. Mark A. Haynes, Black Holes of Innovation in the Software Arts, Berkeley Technology Law Journal, 14 Berkeley tech. L. J. 567 (Berkeley, Spring 1999)
21. Mark Stefik, Trusted Systems
22. Mark Stefik, Trusted Systems
23. Mark Stefik, Trusted Systems
24. Life Liberty and the Pursuit of Copyright. Round 1, Stefik Atlantic Unbound roundtable (September 1998) Organized by The Atlantic Monthy, this online debate between John Perry Barlow, Charles Mann, Mark Stefik, and Lawrence Lessig covers different aspects to intellectual property protection online.
25. Life Liberty and the Pursuit of Copyright. Round 3, Lessig. Atlantic Unbound roundtable (September 1998) Organized by The Atlantic Monthy, this online debate between John Perry Barlow, Charles Mann, Mark Stefik, and Lawrence Lessig covers different aspects to intellectual property protection online.
26, Free Software Foundation website
27. Esther Dyson, Intellectual Value. A radical new way of looking at compensation for owners and creators in the Net-based economy.
28. Linux Documentation Project
30. Free Software Foundation website
31. Eric S. Raymond, The Cathedral and the Bazaar. (O'Reilly 1999)
32. Eric S. Raymond, The Cathedral and the Bazaar. (O'Reilly 1999)
33. Linux Documentation Project
34. Free Software Foundation website
35. Free Software Foundation website
36. J. P. Barlow quotes Stewart Brand in his article in The Atlantic Monthly Online
37. Richard Barbrook, The Hi Tech Gift Economy
38. Richard Barbrook, Hypermedia Freedom
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