Copyright and intellectual property: who owns what?

Copyright and intellectual property are subjects near and dear to both writers and publishers. Until recently, the technology was at a stage where copyright violations and out-and-out rip-offs were somewhat rare. As with almost everything else on the planet, that has changed with the burgeoning presence of the Internet.

Copyright and intellectual property are subjects near and dear to both writers and publishers. Until recently, the technology was at a stage where copyright violations and out-and-out rip-offs were somewhat rare. It takes a certain amount of money to republish pirated words or images in quantities where there can be significant financial damages to the copyright holder. As with almost everything else on the planet, that has changed with the burgeoning presence of the Internet. Now anyone can become a plagiarist, copyright violator or image thief and republish material and distribute it worldwide with a few flicks of the wrist. How is this going to affect us in the publishing industry and what rules are in place to ensure fairness to all concerned?

Although there are no hard and fast answers, opinions abound. And these opinions were show-cased last month at a panel session at IDG’s Internet expo. Moderated by Craig Horrocks, managing partner of Clendon Feeney, specialists in IT law, the panel consisted of Martin Taylor publisher of Computerworld as well as the online service @IDG, Bruce Simpson, online publisher of Aardvark and 7@M News, and Richard Ram, content editor for National Business Review’s Business Centre Online.

Craig Horrocks started things going with the premise that the current copyright laws should suffice in cyberspace. Panellists agreed and all dismissed the idea that “trusted servers”, third-party products to protect online data, are required. The law is quite clear about what is a copyright violation and what isn’t.

Bruce Simpson was quite adamant that the laws should ensure fairness. Domain names as trademarks is a case in point. If a speculator registers a company’s domain name with the intent to sell the name back to that company, that is clearly unfair. However, if Jim MacDonald wants to register MacDonald’s Bike Shop as macdonalds.co.nz, that is okay as Jim is not “misrepresenting” himself or his business. The key here is intent to mislead (somewhat like misleading coalition partners in the Beehive: if the intent is nefarious, it is a problem; if the intent is innocent, no problem).

The topics then went to linking. Martin Taylor, with a large investment in online material, has no problem with others linking to the @IDG site. “We provide original content and the market understands where it comes from. That is our value-add. We don’t even require permission to link to the site.” Bruce has many links on his 7@M site and notes that larger organisations usually don’t mind. “It’s the smaller outfits, those from a ‘dead tree publishing’ [paper-based publishing] mind-set without a clear understanding of the issues that object. It’s their loss.” All agreed that “framing”, where the link only pulls the page into a frame without actually going to the site itself, is a hostile act and could be actionable. Craig predicted a test case in the future if the practice does not stop.

The topic then shifted to liability. Is an ISP liable for objectionable material? Is the publisher? Richard Ram believes the ISP is simply a carrier and cannot be held responsible for the abuse by others. However, ISPs do have a responsibility to reject newsgroups that deal with patently offensive topics, such as kiddie porn. Simpson came back with the analogy that a printer is liable for prosecution as well as the publisher if they produce objectionable material. Taylor noted that a bookstore cannot be held responsible for selling objectionable material while a publisher can. The premise is that a bookseller cannot possibly know every word in every book while a publisher presumably reads what they publish. The same applies to an ISP — they cannot be responsible for all Web sites everywhere. But if they “mirror” objectionable stuff, there could be a problem.

Horrocks pointed out that different countries have differing laws, and the value of the laws lie in the ability to enforce them. But again, intent to mislead is the key factor, and most courts will side with an aggrieved party if substantial loss can be proved as well as intent to mislead.

This is an area where good legal advice is required, especially if there is any reason to suspect that the rules are being bent (or broken). As more and more electronic services come on line and the fees to access the information start to become significant, copyright violations will increase. A clear understanding of what is fair and what isn’t will be a necessary requirement for all concerned.

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