University of Alberta
Intellectual Property and the World Wide Web
Introduction
The proliferation of new technologies has facilitated the distribution, reproduction, and manipulation of intellectual creations. One such innovation, the World Wide Web, is having a tremendous impact on our understandings and practices of intellectual property. Through the exploration of intellectual property principles, this paper will focus on the current issues of World Wide Web sites as digital property. Intellectual property concerns are ubiquitous on the World Wide Web; these concerns are prevalent in both print and online literature. Through a review of this literature, concerns surrounding the construction, content, and copyright protection of World Wide Web sites will be discussed and interpreted in the context of intellectual property.Principles of Intellectual Property
Intellectual property is the body of law that serves to protect creations that are "intangible or intellectual in nature" (Harris, 1995, p. 6). This is somewhat of a misnomer as this protection is limited to the expression of an idea rather than to the idea itself; the creation must be in a fixed or tangible form to secure protection. Digital or electronic creations are in a virtual or intangible form, thus, it is problematic to secure this protection.The term intellectual property is often interpreted to mean copyright and its neighboring performance, production, and broadcast rights. The issues at hand will focus primarily on the intellectual property concept of copyright. The purpose of copyright law is to "promote the progress of Science and the Useful Arts" (Mean, 1995, p. 2). Creations or works in both the cultural and information technology industries are granted automatic copyright protection provided that the work is original, fixed in form, and created or published by either a Canadian citizen, British subject, or a citizen or subject of a Berne Convention country. Through copyright legislation, the creator is given specific rights and is protected from the infringement of these rights. This protection lasts for the life of the creator plus 50 years thereafter (Harris, 1995). Copyright is effective even in the absence of a copyright © symbol.
The Canadian Copyright Act (1) maintains the economic rights and the integrity or moral rights of a creator. Economic rights include, but are not limited to, rights of reproduction, public performance, publication, adaptation, exhibition, and the right to authorize any of these rights. Moral rights, dealing with the rights of paternity, integrity, and association, are summarized by Mean (1995, p. 3) as follows:
- The right of integrity; that is the right to object to any distortion, mutilation or other modification which might be prejudicial to the artist’s honour or reputation,
- The right of attribution; that is, the right to claim authorship of a work,
- The right to decide when a work will be published, and
- The right to withdraw a work from publication.
(1) The Canadian Copyright Act that is referred to throughout this paper is an unofficial and consolidated version that is found in Canadian Copyright Law (Harris, 1995).
Implications for the World Wide Web
A conceptual description of the Internet can provide a context for the discussion on the World Wide Web, hereafter referred to as WWW. The Internet, often called the Information Superhighway, is a global system of interconnected computer networks. This system supports many communication applications such as e-mail, Usegroups, Telnet for remote access, and FTP or file transfer protocol. The Internet and WWW are very closely woven together. December and Randall (1995) assert that the WWW is "a convergence of computational concepts for presenting and linking information dispersed across the Internet in an accessible way" (p. 7).Origins of the World Wide Web
The WWW was developed in Switzerland at the Conseil European pour la Recherche Nucleaire (CERN) in March 1989 as a means to facilitate the timely dissemination of research by international physicists. The premise behind the WWW was to provide an interface with which to retrieve and view hypertext documents and make these documents universally accessible (Zeltzer, 1995). This accessibility is based on the principle of universal readership which asserts that "if information is available, then any (authorized) person should be able to access it from anywhere in the world" (Levy in Zeltser, 1995, p.1).Initially, the WWW was incapable of displaying graphics; the development of graphical browsers such as Mosaic and Netscape which support multimedia have revolutionized the WWW. Although academic roots underpin the workings of the WWW, it has grown to become a widespread phenomenon for the dissemination of personal, commercial, organizational, and governmental information. This information is made accessible via hyperlinks between WWW hypertext documents which now contain integrated textual, graphical, and multimedia works.
Digital Transmission
Digital transmission involves sending documents across the WWW for the purposes of browsing and downloading. Browsing, or surfing the Net, involves scanning the WWW for websites; downloading is the process of transferring files or web documents from a remote computer to the user’s floppy or hard disk drive for storage (Crumlish, 1995). These acts of digital transmission have caused copyright concerns.The United States Green Paper, which proposes amendments to the American Copyright Act of 1976, addresses the applicability of copyright law to digital transmission. Shade (1995) discusses the concepts of copyright law that are considered in the Green Paper: Right to browse; Right of digital transmission; Abolition of "first sale"; and Abolition of fair use. The first concept, Right to browse, alludes to the right of browsing or surfing the WWW. It is suggested by the Green Paper that the Right to browse could constitute infringement of copyright as the transmission of websites serve to reproduce the work of the creator. The second concept, Right of digital transmission, proposes that the transmission of a work is causing a reproduction of the work to occur, thereby infringing upon copyright. However, this does not take into consideration factors such as fair dealing in education and libraries. Abolition of "first sale", the third concept, suggests that the redistribution of digital works would be an infringement of copyright. Lastly, the Abolition of fair use is implied, and thus any copying of works, even for private non-commercial purposes, would be seen as an infringement of copyright.
Although the Green Paper attempts to address the effects of digital transmission on copyright, it is evident that the proposed amendments are limiting and fly in the face of the concept of universal readership. It is interpreted that any browsing or use of works on the WWW would be construed as copyright infringement under the proposed amendments of current legislation.
Derivative Works
Derivative works are essentially new works that are created by building upon existing works. The creation of new works in a virtual environment is facilitated by the use of cut, copy, and paste applications in web browsers, graphics software, and word processing programs. Shade (1995) addresses the notion of digital plasticity or the ease with which digital works can be reproduced and manipulated. This malleability could be potentially advantageous in the dissemination of information, but it is causing problems with respect to copyright and ownership of derivative works. Barlow (1993) offers an alternate perspective to the metamorphic quality of digital information. Barlow discusses the concept of digital information as an evolving process that has no final fixed form, similar to oral traditions. Through this perspective, digital works would be no more protected by copyright than other unfixed works. Thus, the copyright of derivative works would not become an issue.Current Canadian copyright law (Harris, 1995) stipulates that digital works must meet the same criteria for copyright protection, thus, originality, fixation, and nationality of creator and publication are due considerations. Fixation is a problematic criterion, as online works are protected only when printed or saved to disk. In the United States, interactive works are considered to meet the criterion of fixation; Canada is expected to adopt this legislation in the near future.
According to the copyright law, permission is required from the creator to adapt or manipulate digital works; where permission is granted, the moral rights of the creator and the integrity of the work must be respected. With digital works it is perhaps easier to infringe on moral rights than through other forms of works due to the ease of modification. The moral rights of a creator are infringed if the work is altered in such a way it is mutilated, distorted, or used in association with a product, service, or institution that would cause the dishonour of the reputation of the creator. This is stipulated in section 28.2 (1) of the Canadian Copyright Act.
Digital works can be altered through morphing, which is the manipulation of images, and through sampling, which involves borrowing bits and pieces from different web sites (Harris, 1995). When works of another creator are altered, even slightly, and then uploaded back to the to the WWW, the rights of the creator are infringed. There is some debate as to who is the owner of these derivative works, since they are built from existing works on the WWW. In addition, digital reproduction is precise and identical in quality, thus creating the dilemma of original versus copy. Because digital duplicates are exact, often the original cannot be differentiated from the copy. The combination of exact duplication with the ability to morph and sample can create unwanted implications on the WWW.
World Wide Web Construction
New areas of intellectual property concern are facing the construction and design of websites. These concerns include the increasing competition over domain names, the copyright infringement of HTML structures, and the debate over the use of hyperlinks.Domain Names
Increase in the commercial use of the WWW is making the domain name one of the most sought after components of a web site. Domain names are unique electronic addresses that are used to identify e-mail users and websites. The domain name is part of the URL, or uniform resource locator, which is used to tag websites. For example, www.ipmag.com is the URL for the homepage of the Intellectual Property Magazine; the associated domain name is ipmag.com The necessity of domain names on the WWW has sparked competition for these names and this has resulted in the need for domain name protection. Similar to names in traditional form, domain names cannot be protected through copyright legislation; they are instead covered by the Trade Marks Act (Kelly and Kumor, 1995).Trade marks are part of intellectual property legislation; they grant the owner exclusive use of the trade mark. For example, Microsoft® and the Microsoft Windows® logo would both fall under the protection of trade marks; similarly, www.microsoft.com would give Microsoft® exclusive rights to use that particular domain name. Unlike copyright, which is automatically given protection, a trade mark must be registered through the Internet Network Information Society or InterNIC. Due to the international registration of domain names, each is unique and thus frequently competed for (Kelly and Kumor, 1995).
HTML Structure
Web pages are complex digital works that are constructed through the use of HTML or hypertext markup language. This language translates computer formatting codes into web documents that are universally retrievable on the WWW. Potential copyright infringement comes into play due to the ease of replication that is facilitated by web browsers such as Netscape which can show the HTML structure of a virtual document. These structures can be downloaded and manipulated to create another potentially similar website. Because content on the web is virtual and electrons are malleable, copying and editing of HTML is done with relative ease.Woody (1996) addresses the concerns surrounding the piracy and alteration of entire web sites. Piracy includes using the original structure as a model from which to learn how to use HTML, copying and altering parts to create parody sites, and the alteration of sites for fraudulent purposes. The first rationale behind the copying of HTML structures of an existing document is to use it as a template to work from when learning how to create web documents. However, there are currently many authoring programs available that can assist a novice in constructing a website. Another reason for copying HTML structure is for the creation of parody or mock web sites dubbed para-sites by Hotwired writer Michael Schrage. Para-sites are identical in design and appearance to the original site that it is intending to mock. What differs is the textual content which offers humorous commentary. An example of a para-site is Stale which offers a spoof on Michael Kinsley’s Slate website. This raises the question of how far copyright will go to protect the rights of creators, and whether the mock derivative sites will be granted copyright protection. The third form of piracy of HTML structures is more serious, involving the fraudulent use of duplicated web sites. Woody illustrates this fraud through a tale of two websites, one which provides legitimate fee-based legal services, and the other that has fraudulently copied this website. This fraudulent website has changed part of the original HTML code so that credit card numbers are inadvertently given to its site.
Although it can be argued that web site structures are analogous to book structures, it can be asserted that web design and construction can be in and of itself a work to be protected. Web sites incorporate the use of animation, fonts, layout, placement of pictures which all contribute towards the creation of a unique web site. According to Radcliffe "site design is potentially copyrightable, though copyright protection is thin" (cited in Woody, 1996, p. 2).
Hypertext Links
A new concern that is emerging in cyberspace is that of hypertext links in web documents. Hypertext is "non-sequential writing", a term coined by Ted Nelson (Zeltser, 1995). In cyberspace, web sites provide electronic links to works on other sites, thereby connecting these sites together through the URL. These links are dubbed hypertext links or hyperlinks which enables the concept of non-linear browsing of textual, photographic, artistic, and multimedia works on the World Wide Web. Thus, digital works by one creator can be accessed through sites of another creator. There is growing concern that these links may infringe the rights of the creator.Although it is suggested that URLs are merely electronic addresses that are analogous to reference citations, Merrill and Burger (1996) assert that unwelcome hyperlinks can infringe the intellectual property concept of distribution rights. To illustrate this concern, they present the case of The Shetland Times Ltd. vs Dr. Jonathon Willis and Zetnews. The News creates links to headlines in The Shetland Times who makes no reciprocal links back to The News. Thus, readers of The News, through the use of hyperlinks, would read articles by The Times under the impression that they are reading works of The News. It would appear that The News was infringing on the distribution rights of The Times.
Within this case, issues of fair dealing and contributory infringement are brought to light. Under the provision of fair dealing, the use of another creator’s works is permissible with the inclusion of references to the original works. In this case, the only reference made was the link, and the link did not credit The Times as the source of the article. So although a link was provided, it appeared to have been made unfairly. The other concept, contributory infringement, refers to the notion that by linking The News with The Times, an infringing copy of The Times’ work is being made.
The argument arises that if a work is available on a web site, then it is liable to the principle of universal readership, as aforementioned. Thus, the assumption is that works are created with the intention that worldwide access will be given to the site and its contents. Hyperlinks serve to facilitate this access. However, with respect to moral rights, a creator may choose not to be associated with another web site. In addition, hyperlinks could be construed as distribution of the creators’ works. The basis for this is that unlike citations and references in traditional textual works, hyperlinks not only provide reference to the URL, but also serve as a device to connect you to the work (Templeton, 1997).
Lastly, the confusion of authorship, as illustrated in the Shetland case, is also broached by Templeton who asserts that moral rights may be affected as users of the web may not realize who the actual creator is. The false impression of ownership, whether intentional or unintentional, constitutes an infringement of intellectual property.
World Wide Web Content
Websites are created using a variety of media. The content that is typically found on a website on the WWW includes literary works, photographic works, audio-visual works, and graphics. These works, once uploaded into cyberspace, are digital works which can be easily transmitted, reproduced, and manipulated.Literary Works
Literary works encompass the broad base of textual works that can be authored including but not limited to news articles, fictional works, opinion pieces, and government documents. These works, traditionally found in print format, are now widespread on the WWW. This has resulted in copyright concern with respect to personal websites and electronic publishing.Personal websites are commonplace on the WWW. These sites are created by users of all ages, and more often then not these users are unfamiliar with the terms of copyright law. Several copyright concerns exist for personal web creators. First of all, creators of websites can potentially infringe copyright by downloading and transmitting works to their websites from other websites, thereby sampling from the WWW. Under the Canadian Copyright Act, the downloading would infringe on the distribution rights of the creator, and the combining of texts of different web documents without proper referencing would constitute infringement of moral rights. Secondly, there is the concern with the scanning of copyrighted materials to post them on personal web pages as this too could infringe the rights of creators. With all the cause for concern, it is paramount that web users obtain permission from the copyright owners of works.
Electronic publishing is becoming widespread and is being used as a substitute and supplement to traditional print publishing. Self-publishing on the WWW is eliminating the need for editors and publishers. On the opposite end of the spectrum, printed works of authors are being republished electronically by publishers, without economic compensation being given to these creators. This is infringing upon the rights of creators to distribute works; in addition, these publishers are not giving consideration to economic rights. These infringements were broached by Di Brandt (2) from the University of Manitoba. Brandt expressed concern that major newspaper firms were buying articles for one time fees, and then redistributing them online. She asserted that the linear and spatial flow of the text was altered and thus these publishers infringed not only economic rights, but also moral rights.
(2) Di Brandt, Marilyn MacCara, and Kathy Chute spoke as a guest panel on February 28, 1997, for the course on Intellectual Property and the New Technologies.
Digital Multimedia
Exploration of the WWW reveals the abundant use of photographs, graphics, music clips, video clips, and animated works in addition to literary works. The integration of these works with literary or textual works creates the concept of multimedia. Similar to literary works that can be linked by hypertext, multimedia can be linked together by hypermedia. This in itself can create intellectual property concerns similar to the discussion on hypertext links. There are two areas of multimedia in particular that are causing copyright problems.1. Graphics and Photographic works
Websites of museums, galleries, and photographers are posing copyright
concerns as they contain images that can be easily downloaded and manipulated.
The advent of the digital scanner has also contributed to the rising concerns
of copyright as photographs and other such materials can be transformed
into digital representations that can then be transmitted and manipulated.
Graphics are digital images that are composed of pixels; such images include
animation, cartoons, artwork, and photographs. While each of these areas
are susceptible to reproduction and alteration, it is the use of photographic
works on the WWW that is creating considerable havoc with regard to copyright
infringement.
Photographic works are protected by copyright legislation, and the copyright holder of the photograph is the party that caused the photograph to be taken, usually the holder of the negative. Similar to textual works, photographic works have always been the victim of copyright infringement. Photographic technologies enable the reproduction of photos without the need of the negative, and photocopiers have long been used to reproduce images. However, even the most advanced photographic technologies and colour copiers are incapable of performing the feats of a scanner. Scanners have revolutionized the use of photographic works and have made photos a standard feature of websites. The principle feature that has enabled this is the digitization of the photograph which allows for images to be easily reproduced, distributed, and manipulated. Lundy (in Brockel, 1995) affirms that scanned images are in clear violation of the copyright holder’s rights unless prior permission is obtained to reproduce and distribute the image.
The use of photographic works on the WWW is widespread. A website is an ideal medium for photographers to advertise and promote their talents and skills; their photographic portfolio is easily uploaded or transmitted for viewing on the Web (Brockel, 1995). Just as easily, these pictures can be downloaded and subsequently altered, thereby infringing copyright of the creators. The use of photographic works on the WWW is not just limited to photographers. Personal websites often contain photographic works that have been scanned from the family photo album, and commercial sites often sell products via the WWW through the use of photographs.
Brockel (1995) discusses many emerging copyright issues with respect to photographic works. One such issue is the doctoring or altering of photographs of another creator. Sophisticated web browsers with a graphical interface make it possible to download or scan photographs and subsequently morph or doctor them. This infringes upon copyright in several ways: First of all, the image is downloaded or scanned which constitutes reproduction and thus copyright infringement; Secondly, the altering of the image infringes on the moral rights of the creator; Lastly, questions of authenticity of photographs arise as web users may be misled to believe that the doctored photo is the work of the original creator. This last aspect is of particular importance to the news photographs because their value lies in their accuracy. Brockel asserts that such altered photos lose credibility for the source, thereby affecting the moral rights of the creator.
2. Audio and Video Works
New technologies have propagated the use of musical and video works
on the Internet. The use of such media on websites is deemed analogous
to infringing the right of public performance as stipulated in the Canadian
Copyright Act. There is increasing prevalence of big corporations such
as Sony and Disney converting works from conventional formats into digital
media. The creators of these works are typically not given economic compensation,
however, it has been proposed that a pay-per-browse system will be implemented
to monitor the use and control copyright of these works.
Piracy Prevention
It is asserted by Templeton (1997) that legal protection is not necessary where technological protection is available. Thus, security systems are being developed to prevent piracy of digital intellectual property. The use of new technologies can potentially eliminate the concerns of copyright infringement that new technologies are causing.The enormity of the WWW makes it exceedingly difficult for creators to check if their works have been copied and their rights infringed. Thus, infringement often goes unnoticed by creators. Norderhaug and Oberding (1995) suggest using the web to protect intellectual property on the web, and they offer the example of using web robots that can automatically match patterns on web sites to search for republications on the WWW. This technology could potentially work to prevent WWW piracy. They also support the use of revenue models such as pay per view schemes.
Cryptography is a technique identified for maintaining the economic and moral rights of creators. In cryptography, privacy and security are preserved through the transformation of ordinary text or plaintext into coded or ciphertext through the process of encryption. This means that privacy and security are preserved (Shade, 1995).
These are just two of many technological security systems that can be used to enforce copyright on the WWW. It is paramount that such measures be taken in the interest of protecting rights of creators.
Conclusion
As new technologies continue to proliferate, it becomes more and more of a challenge to deal with issues of intellectual property. New innovations in the cyberspace such as the World Wide Web continue to drive ahead full force, leaving us with the need to make careful considerations to deal with present intellectual property concerns so that we can potentially manage future complications as they arise.The World Wide Web is tangled with many intellectual property concerns. Through the discussion of intellectual property and its implications on web site construction and contents this paper has explored some of these issues; however, it has only scratched the surface.
References
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© Sona Kothari, 1998
Written for LIS 582: Intellectual Property and the New Technologies
Submitted to Professors Hope Olson & Lillian MacPherson on April
11, 1997