Discuss About The Enforcement Of Intellectual Property Shows.
It is rapidly becoming difficult to consider copyright economics without taking into consideration of the impact of competition law on it. With the expansion of copyright into the realm of functional work, the capability of the copyright owners to develop economic restricted access especially where the copyright safeguards an arbitrarily selected interface that defines the industrial standard or where the owner is the exclusive source of raw information. Lately, there have been several discussions about the involvement of the internet service providers (ISPs) while enforcing the copyright law (Li and Lee 2015). While Copyright confers a restricted statutory control over expression in creative works, it is hardly co-extensive with economic dominance but less than monopoly. It can be stated that though copyright can create legal monopoly but it does not necessarily implies taking undue advantage of any dominant position. Therefore, permitting the copyright owners to exploit their developed assets freely is considered pro-competitive. Such permission also includes the capability choice of the copyright owners if they wish to deal with other commercial undertakings as a means to exploit their own assets (Aguiar and Martens 2016).
The issues related to copyright and protection guaranteed to their protectors poses a great policy challenge in terms of creativity. The rights of creators are considered to be ‘under siege’ under several circumstances:
Digital or the advanced technology can be perceived as the most influential and dominant forces in the history of humankind, especially the evolution of internet. The internet does not have any respect for institutions and is considered as an intense agent (Sparrow 2017). The content on the internet surface cannot be said to be safe and only speed, merit, ingenuity, quality and flexibility in the performance of one person dominates the internet platform (Joyce et al. 2016). The discovery of internet being a powerful force is said to be “a power for bad or good in equal measure” which assures of merely one thing that is, the unprecedented empowerment to creativity and intention with completely new ways of working. To ensure that appropriate ways are implemented to associate this power with every form of creativity while guaranteeing protection to the inalienable rights of the creators to use their works (Fromer 2015).
The notion of internet ensures that communication does not rely on a single path of central server or information flow. The capability to evade data flow has not only created but has strongly underpinned the belief regarding cyber anarchy which fundamentally includes centralized authoritarian monitoring, supervision or control and elimination of the possibility of censorship (Zemer 2017). This perception associated with internet has placed the internet on a conflicting phase with the established laws especially the copyright laws.
The concept of copyright laws and the copyright extension evolved prior to the emergence of the digital era or the technologically advanced era that is fundamentally dominated by the computes and the internet, in particular. Initially, copyright laws had monopoly over the printing of books that were granted to the members of the Stationer’s Company by the monarch. However, over the past few centuries, the parameters and scope of copyrights have expanded in order to fulfill the needs of the society (Meltzer 2015). The incline in the scope of copyright laws now include various forms of creative and innovative material along with ways that purports to damage such materials, owing to the advancement in technology.
At present, though several nations have enacted their respective intellectual property rights including copyright protection, there are international legal frameworks that have stipulated copyright laws to safeguard innovative creations (Sparrow 2017). One of the first international agreements that stipulate copyright law is the Berne Convention for the Protection of Literary and Artistic Property (Berne Convention). Further, the Agreement on Trade-Related of Intellectual Property Rights (TRIPS) and the establishment of the World Trade Organization (WTO) that have several countries as their signatories sets out minimum intellectual property benchmarks that is required from such parties (Lyman 2017).
Both regionally and domestically, there are certain other relevant laws that govern the copyright laws. The Preferential Trade Agreements such as the Australia-United States Free Trade Agreement (AUSFTA) and the European Commission’s Directive for the Enforcement of the Intellectual Property Rights regulates copyright law. In Australia, the Copyright Act of 1968 regulates the most recent amendments that have been made in the Copyright Amendment Act 2006.
Intellectual property law purports to encourage originality, Ownership security, creativity and invention. Copyright law is defined as a form of intellectual property that is entirely based on the labor and skill of a person developing the ‘copyright work’. Copyright provides the creator of an original work with the exclusive right to use it commercially, reproduce the work and be recognized as the creator of such work (Lee 2014).
Copyright law safeguards the form or manner in which the innovative ideas are expressed but not the ideas itself and this concept is kwon as the ‘idea-expression dichotomy’ (Danaher, Smith and Telang, 2017). Accordingly, copyright law endows with limited protection rights to the original expression of ideas to avoid restriction to public accessibility and use of new work during the term of the copyright. The copyright law safeguards only certain forms of expression which includes artistic works like blueprints, paintings, literary works like songs, music, computer programs, broadcasts as well as video and sound recordings (Drahos and Braithwaite 2017).
Copyrights in Australia are not required to be registered unlike other countries and the right of author is created anytime when the author expresses his or her ideas in a ‘material form’. For instance:
The Copyright Act 1968 (Cth) governs the protected work that is published first in Australia or where the author of the copyright is a citizen of Australia. However, under certain circumstances, through international treaties, the copyright law of the country may be applicable to acts committed in Australia, which are related to the copyright developed overseas (Hill 2015).
Amidst the several rights that are entailed in Copyright Act can be categorized into two separate categories such as moral rights and economic rights. While economic rights can be licensed, sold and bought by the original owners of copyright, moral rights are associated with the original creator of the copyright that is of non-transferable in nature (Litman 2017).
The Copyrights Act entitles the copyright owner with the exclusive right to do specific things along with the safeguarded work. These rights entail the rights to:
The creator of any copyright matter owns these personal or moral rights. These forms of rights include the rights of the copyright owner to:
Moral rights are no-transferable rights and can neither be sold nor owned by any enterprise. These rights are valid until the duration of the copyright excluding the right of the creator to safeguard his own work from being subjected to offensive treatment, as this right is valid for the entire lifetime of such creator (Mulligan 2017).
These rights are similar to the moral rights and are usually owned by the performers of the copyright works with respect to performance like cinematography, dramatic works, sound recordings, etc. Performers include singers, musicians, actors etc. As these rights are similar to the moral rights, it also confers the same rights upon the performers like:
Copyright is owned by the creator, author of the copyright work with an exception to the copyright created by any employee within the course of his employment. Under such circumstances, the employer shall become the owner of such copyright matter provided the employment has stipulated otherwise. Under several circumstances, the author may sell, assign or provide their copyright matter on license except for their moral rights to an enterprise or another person who becomes the owner of such copyright thereafter and treat the work as their own creation (Andrews 2017).
A copyright may be valid for 70 years after the death of the author. Nevertheless, it may be subjected to various time limits that may be subjected to various forms of copyrights (Danaher, Smith and Telang, 2017).
The rapidly growing copyright infringements can be attributed to the technological advancement especially, the internet. The growing trend of sharing culture in terms of peer-to-peer (P2P) file sharing over the internet poses a significant challenge to the copyright laws. The youth, in particular, have been gaining strong grip in the form of digital rights management, copying and other relevant trends posing a significant challenge to the copyrights laws. Consequently, in the advent of growing criminal activities related to infringement of copyright protection, the copyright laws have been evolving over time resulting in incorporation of severe criminal penalties against any copyright violations in this technologically advanced era (Commons 2015). The rationale behind the developments in the copyright laws is to marketing people realize that a copyright is property and usurping a property without the permission of its owner amounts to a crime and the person committing such crimes are subjected to several penalties.
In regards to the emergence of advanced technology, the gap between copyright holders and that of the users of copyright protected works is widening with each passing day. While the formers are simply willing to safeguard their interests, the latter is unable to comprehend the risk of liability that may arise within the copyright system. The teenagers and the youth particularly hardly comprehend and appreciate the economic conditions of the songwriters and artists. Prior to the advent of the advanced technology, the conduct of the youth generation was not much of a concern with respect to copyright laws as their only connection to film and musical products was in form of retail consumption and purchases (Danaher, Smith and Telang 2017).
However, with the emergence of the advanced technology, the internet has provided the young generation with multiple opportunities to make high-quality reproductions of films and music thus, posing a problem for copyright holders. The internet has enabled the youth to distribute such music free or for leisure without having any concern about usurping the work of the original creator of the work, music or art.
Copyright protection in the music industry is essential to earn income and the rights in the lyrics and music, performance, sound recordings, published editions including the rights underlying merchandising forms the source of money in the music industry (Mendis et al. 2017).
In any musical track, there is more than one copyright owner:
It is important to differentiate between the musical work reproduced on a record and the recording itself. It implies that there is only one owner of the song but there may be hundred of recorded versions with new different owner for each new recording (Danaher, Smith and Telang, 2017). The lyrics of a song are a literary work that is safeguarded and the melody is safeguarded as a musical work. In case the authors are separate people, separate permissions must be obtained from each people in case such people are interested to cover or reproduce the song.
After the enactment of the Implement Act from January 2005, unless there is an agreement to the contrary, ownership of copyright in a sound recording shall be shared between the following persons:
In case of more than one owner of the sound recording, the owners own such copyrights as ‘tenants in common’ in equal shares. Under the Copyrights Act of Australia, a performer refers to the person who contributes in providing sound to the performance. If the performance includes the performance of a musical work, the conductor shall also be considered as a performer. This entitles all the musicians, singers including session musicians who perform on a recording shall also be owners of the copyright in the recording (Freund 2016).
In practice, Australasian Mechanical Copyright Owners Society [AMCOS] administers these provisions on behalf of the member of its publisher. Majority of the publishers are members of AMCOS, which implies that in every case, record companies contact the AMCOS to inform the copyright owners about their intention to record song and about making appropriate payments for the same (Commons 2015).
In the event of online and digital music services like the Apple Music and Spotify, iTunes and while reproducing (downloading) music is licensed by AMCOS and the exercise of the communication right is usually licensed under APRA.
The copyright protection is an exclusive right to:
The term ‘reproduction’ is often used as a synonym for ‘copy’ but has a broader interpretation in the context of copyright law and is not necessary to imply the exact meaning. In other words, it need not be a copy of the whole work and the copy of only a substantial part shall be considered as ‘copy’ of the work. The copy of such work need not be done using the same medium.
The term ‘publication’ has been defined as ‘supplying of copies of the original material to the public either by sale or otherwise’ under the Copyrights Act. In the context of musical composition, this could imply selling sheet music. However, supplying sound recordings of musical works cannot be said to be ‘publication of the work’ under the Copyright Act despite the fact that it is the most common method of exploiting music (Burrough, Gallagher and Navas 2014).
The right to communicate work of the copyright owners to the public was incorporated in the Copyright Act in 2001. This is marked as a significant development in the field of Australian Copyright law. This new right to communication has far-reaching impact and is broad enough to include use of copyright matters over the internet, radio, mobiles and television (Litman 2017).
In regards to the internet and its future incarnations, the communication rights include the right to ‘electronically transmit’ a music track by streaming such music tracks or emailing the same and making such music available on internet (Freund 2016). The communication rights also cover the peer-to-peer file sharing system to enable others have access to material from the internet. Moreover, this right is not restricted to communications within Australia but extends to communications originating here but has been received overseas. Australian copyright owners have a right to prevent the unauthorized communication regarding their material offshore. For instance, the right could be used to prevent an Australian-based website from making a song or film that is not only available in Australia but also anywhere in this world. These are essential if the owners of the copyright are required to safeguard their works given the global characteristics of the internet (Burrough, Gallagher and Navas 2014).
The former Copyright Act did not consider incorporation of digital internet, hence, the new provisions specifically emphasized on ‘online distribution’. The language of the changes made the right to communication ‘technology neutral’ intentionally with a sole purpose to withstand and operate the processes of scientific innovation that might modify a definition that was based entirely on the prevailing technology (Litman 2017).
The right to communicate works to public is wide-ranging. It not only strengthens but also clarifies the exclusive and basic rights of the copyright owner to exercise control over the use of their works in the digital era. The beginning of the widespread digital distribution of the content implied that this right of the copyright owner is the most common right that is subjected to frequent violation (Hagedoorn and Zobel 2015). For instance, when a video clip that contains copyright music is uploaded to a video serving site such as YouTube, it involves the use of the communication right of the music work. It results in either infringement of communication rights in music, recording or both along with infringement of other copyright laws.
In 2004, the Australian Government agreed to the US Free Trade Agreement Implementation Act 2004 (the ‘Implementation Act’). The Implementation Act incorporated the amendments necessary to be made in the Australian law, which shall reflect the terms that have been agreed in the Australia-United States Free Trade Agreement. This Implementation Act introduced fundamental changes in the Copyright Act that had a direct impact on the music industry. Some of the essential changes were the extension of the validity of the copyright in sound recordings, musical compositions and lyrics from 50 to 70 years. It shall be counted from the end of the year of the owner’s death in case of literary or musical works or from the end of the year when the recording was first published in case of sound recordings (Bently and Sherman 2014).
Secondly, performers are considered as ‘makers’ of sound recordings of their performances. Lastly, the performers were granted new ‘moral rights’ in case of live performances. These changes came into effect on Jan 1, 2005.
Copyright is perceived as a significant factor in the international and local cultural landscape. In the age of digitalization, music sector has not only grabbed the digital technologies and the opportunities that it offers to reach wider and new audiences but have also clinched the flexibility that the technology has provided the consumers to have access to their desired music. (Lee 2014) believes that the growing development of the digital music services can be enhanced if more positive steps are undertaken to implement protection measures effectively in respect of content owners and the legal digital content providers.
According to (Hill 2015), innovative business models have changed the music industry enabling it to function in the digital economy for facilitating delivery of variety of products to the Australian consumers and enter into new online markets. In the beginning of 2011, the largest international digital services were prevalent ion only 23 countries but by the beginning of 2012, these services were prevalent in 58 countries. The Australian music industry has also licensed several legal services. Presently, many legitimate options are available to music lovers such as subscription services, which permit the users to have access to huge music library at a low monthly fee (Trimble 2018). There is digital download option that stores a huge proportion of digital revenues and provides almost 500 legal services across the world, which offers libraries up to 20 million tracks approximately like the iTunes stores.
The most significant factor that has challenged the digital music business is the global piracy. The infringement of the copyright of the copyright owners has significantly affected the ability of authorized services to grow audiences. Hence, (Freund 2016) asserts that in order to promote wide protection to the library materials, the Copyright Act has incorporated provisions that ensure security of the original work. Section 49 of the Copyright Act safeguards the accessibility of the consumers to online library materials. Further, section 200AB of the Act permits libraries to make the materials available to users for wide-ranging purpose.
However, (Commons 2015) argues that though such legal provisions purports to safeguard the interests of the owners and the consumers, but the intricacy of such provisions makes it difficult for the libraries as well as the users to understand the provisions. Consequently, the ability of the libraries to provide access to copyright materials becomes restricted. Further, section 200AB of the Copyright Act authorizes the use of copyright material that is administered by archives or libraries for the sole purpose operating or maintaining their services provided such use is not inconsistent with the normal exploitation of the work. Nevertheless, the intricate and confusing nature of the legal provisions has made its implementation less effective (Gringras and Lambert 2015).
Conclusion
The rapid growths in the digital technologies have brought about significant opportunities for the Australian economy through innovations and ideas and distributing them to wider audiences. It equally requires a flexible framework that ensures free innovation and expression to implement these changes. Fair use provides a more flexible framework that will determine whether such use is permissible or not. Fair use sets out a standard that can be applied to any potential use of copyright material and it promotes creativity by specifying the acceptable uses in legislation.
The policymakers across the world must identify that the interests safeguarded by the Internet counterrevolution are not their own interests (Belleflamme and Peitz 2014). It must be understood that the society is at the elementary stage with respect to distribution of internet content. Copyrights laws that aims at protecting the creator of the innovative works, though ensures protection of their interests but the intricacy and confusing nature of the legal provisions have made it subjected to amendment and interpretation (Andrews 2017).
References
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