Not Easy, But Copyright Law Is Reality, Not Myth
Sydney Morning Herald
Monday July 3, 1995
INTERNET folklore would have it that the Net renders copyright law irrelevant. Although this view is a myth, it is true that the impact of traditional copyright rules is increasingly unpredictable and that enforcement is difficult.
This will be the case even after national copyright laws are amended to ensure that on-line material is protected in the country of origin.
Protectable material authored in Australia - which includes any text, software and video and audio material of a minimal level of originality and substantiality - is automatically protected by copyright in many countries around the world.
The Berne Convention and the Universal Copyright Convention (UCC) provide a widespread international scheme of protection.
Under this scheme, works which are authored by citizens of member countries, or which are first published or substantially created in a member country, are protected in any other member country.
Under the Berne Convention and UCC, the relevant law governing copyright claims is legislation in force where the copyright is claimed - that is, the country where the copying takes place.
The position can vary significantly from country to country, even on such basic issues as ownership and duration of copyright. For example, country "A" may treat one person as the copyright owner - for example, a newspaper proprietor for material produced by an employee journalist - while country "B" would treat the journalist as owner, even if the material was produced by a journalist in country "A". In addition, some countries (such as France) provide moral rights protection.
Registration may sometimes be necessary or desirable. Under the international scheme of protection registration in each country is not necessary in order to be eligible for protection.
Most countries, and all major copyright markets, have abolished registration requirements. However, some countries continue to require registration prior to commencing proceedings for infringement.
The Berne Convention does not require notice of copyright for material to be protected. Under the UCC a copyright notice - 1995 John Smith - must be given, but notice will often be irrelevant because many UCC countries are also members of Berne.
Therefore the general position is that material on the Net, even if not identified as copyright by a notice, will be subject to copyright. But an owner may waive rights, or permit or license use that would otherwise be infringing. Examples include trial use licensing of Netscape and Chameleon software.
Licences may also be inferred. Courts in most copyright countries would infer that the copyright holder intended to permit copy which is lodged on the Net to be viewed and downloaded by a user to disk or hard copy. Courts in these countries would probably not infer a licence to further copy and distribute downloaded material.
Certainly, any conditions as to the use of downloaded material which are made known to the user before the download, either through general conditions on use of a service or as posted on screen, would almost certainly disable the user from arguing an implied licence which was contrary to the notice.
So, and subject to any implied or express licence, material on the Net and other on-line services will usually be protected in Australia and many other countries.
However, in some countries (including Australia today) it is unclear whether the copyright laws currently on the books protect on-line content: the law in Australia will be clarified once the recommendations of the Copyright Convergence group are implemented.
The next tricky part is enforcement. In legal theory, there is a remedy for every wrong. In practice, it will often be difficult to enforce rights where infringement occurs overseas.
Detecting unauthorised copying is difficult and expensive. There can be adequate laws on the books yet woeful enforcement of them. Ownership of copyright can be difficult to prove in some jurisdictions.
Evidence that is admissible, or can be obtained through court processes in Australia, may not be admissible or available in another country. Managing lawyers and litigation abroad is expensive and difficult.
For these reasons, international enforcement of copyright in on-line material will often be difficult.
These are also reasons why service providers, rather than end users, will find themselves singled out as copyright defendants, in the same way as newspapers and television stations are prime targets for defamation actions even where defamatory material which they publish or broadcast originated with a third party. Litigation follows deep pockets.
Commercial replicators of material obtained over on-line services, including the Net, should therefore exercise particular caution and obtain copyright clearances before reproducing downloaded copy.
There is life in copyright yet.
© 1995 Sydney Morning Herald