COPYRIGHT IN THE DIGITAL AGE: THE RESPONSE OF UNITED STATES AND THE EUROPEAN UNION

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3.2.3 In the United States.

In my opinion, the United States of America is perhaps the most radical jurisdiction engaged in the fight against copyright infringement. In addition to vigorous campaigns by various bodies[1], various Acts have been introduced to adequately address copyright protection issues in the Digital Age. Some of them include:

1. The Enactment of the Semiconductor Chip Protection Act of 1984: which was enacted as a response to the introduction of computers and computer programming. To regulate the activities of Computer and program makers and ensure conformity with the law of intellectual property.
2. The Enactment of the Record Rental Amendment of 1984[2], was enacted to prohibit unauthorised commercial rental of sound recordings.
3. The Computer Software Rental Amendments Act of 1990: was enacted to prohibit unauthorised rental and duplication of computer software.
4. The Digital Audio Home Recording Act of 1992 was also enacted to determine the legality of home-taping protected works. This Act imposed royalties/tax on the sale of digital audio recording devices and other blank media. The revenue derived therefrom was paid to copyright owners. The objectives of the Act (as contained in its preamble) were stated in RIAA v Diamond Multimedia Systems Limited[3]. They include:

“(a) to permit non-commercial audio home recording, (b) to give legal protection to the makers and distributors of Digital Audio Tape (DAT) players .– provided they incorporated a system to prevent serial copying, and (c) to compensate copyright owners through a levy[4].

5. The Digital Performance Right in Sound Recordings Act of 1995 sought to provide income for owners of sound recordings for digital streaming of their works.
6. The No Electronic Theft (NET) Act of 1996 expanded criminal enforcement for piracy over digital networks.
7. The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 was enacted to significantly increase statutory damages for the infringement of copyright.
8. The Digital Millennium Copyrights Act 1988[5]: was enacted to adopt Article 11 of the WIPO Treaty 1996 (discussed earlier). Section 1201(a)(1) of the DMCA specifically prohibits activities which are aimed at circumventing technological protection measures. Section 1201(a)(2) prohibits a person from “manufacturing, importing, offering to the public, providing or otherwise trafficking in any technology, product, service, device, component”… that circumvents copyright protection. Although some exception are provided for non-profit libraries, research, security testing of a computer, law enforcement agency use and other legitimate circumstances. The provisions of the DMCA has been further reinforced with the enactment of the Computer Misuse Act^[6] which punishes fraudulent manipulation of protected works. Also the court reiterated the need to prevent circumvention of Digital Rights Management and other protective technologies in R V Gold and Schifreen^[7]

 

The DMCA has been considered in Sony Corporation of America v. Universal City Studios[8] where the court held that the DMCA applied to new technologies. In Oracle America INC V Google Inc.[9] the court accepted its applicability to computer programs In Universal v. Reimerdes[10], the court held that device manufacturers should incorporate anti-circumvention technologies in their devices. In U.S. v. Sklyarov[11], a company was sued when its employee (programmer) invented an application (the Advanced e-book Processor) that translates restricted e-book works to free and unrestricted pdf format. This allowed for copying, editing and manipulation of copyrighted e-books. The court noted that such application should be operated within the ambits of fair use as doing otherwise would amount to an infringement of the author’s right. In Felten v RIAA, the court noted that discoveries of security flaws in a copyrighted work should not be unnecessarily disseminated to the public as doing so may amount to an infringement of the Author’s rights.

9. The Technology Education and Copyright Harmonization (TEACH) Act 2002: Which allowed for the use of copyrighted works by accredited non-profit educational institutions.
10. The Family Entertainment and Copyright Act 2005: which imposes criminal penalties for the distribution of pre-released works.
11. The Stop Online Piracy Act and the Protect Intellectual Property Act: Contains detailed provisions against online piracy and dissemination of protected works. Although it has been argued that the restrictions would weigh in favour of the producers at the expense of the Public who need to have access to works and development[12].

 

3.2.4 In the European Union.

Article 6 of the European Union Copyright Directive[13] enjoins member-states to guard against copyright infringement and the member states have been quite resilient in this regard.

Various laws have been enacted to catch-up with technological advancement. A few of which include:

1. The Free Culture Forum’s Charter for Innovation, Creativity and Access to Knowledge.[14] Which seeks to create a balance between the right of authors and the general public in the digital age. In this regard, a forum has been created online for a purposive interaction among members.
2. The Copyright for Creativity (a Declaration for Europe)[15].
3. The Information Society Directive 2001[16]: was enacted to implement the European Community Directive on the Harmonisation of Copyright 2001.
4. The Enactment of the Computer Directive on the legal protection of computer programs in the European Union: Especially in Article 1 and Article 4

At present there is a proposal for a European Copyright Code which would ensure a united attack against infringement.

In the United Kingdom, we presently have the Copyright, Designs and Patents Act 1988[17] which guards against intellectual property rights infringement. Recently, the Digital Economy Act 2010[18] was enacted to regulate online infringement and dissemination of protected works.

The Federation Against Copyright Theft (FACT), has mobilized industry and government to tackle the considerable online piracy of filmed entertainment. The Police Intellectual Property Crime Unit (PIPCU) of the London Police Department has launched high profile campaigns to educate the public, and pursue cases in the digital and physical piracy markets[19]. The United Kingdom has also sought to expand its frontiers by creating an international Music Joint Venture (IMJV).

In Australia Their present Copyright Law can be found in the Australian Copyright Amendment (Digital Agenda) Act 2000 which was updated to accommodate new digital technologies.

In Germany: the government has adopted the practice of requiring importers of recording/storage equipment to pay a levy of three percent of the import price. The revenue generated therefrom is shared to authors[20].

3.2.5 Notable Reactions in some other Jurisdictions.

Other Jurisdictions of the world are also feeling the effects of globalisation and digitization. They have similarly responded with the enactment of various laws which are constantly being amended to meet up with technological advancement.

In South Africa: South Africa became a signatory to the Berne Convention for the protection of literary and artistic works 1886 in October 3^rd 1928. They also amended their Copyright Act in 1992.

In India, there was an Amendment to their Copyright Act 1999[21] in 2012. The Amendment introduced a new section (65A) which seeks to enforce technological measures for the protection of Copyright. This is in fulfilment of Article 11 of the WIPO Treaty discussed above.

In China: China is perhaps the world’s number one infringement hub not only in the copyright industry, but also in the patents, designs and trademarks industry. The response of China manifests in their various case laws. The most notorious of which include:

• Universal Music, Sony Music, and Warner Music v. Baidu Inc.(2008) (The Baidu Music Settlement Case[22]): Just like Google, Baidu is China’s largest Internet Search Service Provider founded by Robin Li in 2000 with over 80 million visitors per day. It was sued by three entertainment giants (Warner Music Group, Universal Music Group, and Sony Music Entertainment), for linking users to websites where infringing works were accessible. It settled out of court and agreed to pay over $110,000,000 USD to the claimants and share advertising revenue derived therefrom.

IFPI v. Baidu (2005) Baidu was sued for having links to other websites that offered free downloading of pirated songs. The result was a payment of USD $226,000 to the complainants. Another similar suit on similar grounds was brought in Music Copyright Society of China v. Baidu (2008), although Baidu was victorious as their defence that they were a mere proxy availed them. Note however, Metro-Goldwyn-Mayer Studios Inc (MGM) v Grokster[23] where the court noted that such networks can be held liable for infringements done by their users.

[1] Like the Record Industry Association of America (RIAA).

[2] Pub. L. No. 98-450, 98 Stat. 1727 (codified at 17 U.S.C. § 109 (1984))

[3]  180 F.3d (9th Cir. 1999).

[4] Ibid at page 1072.

[5] 17 U.S.C 1998.

[6] 1990 (c) 18

[7] 1988 AC 1063

[8] 464 U.S. 417 (1984).

[9] (2014) US court of  appeal federal circuit

[10] 82 F. Supp. 2d 211; 2000 U.S. Dist. LEXIS 906; 53 U.S.P.Q.2D (BNA) 1780  February 2, 2000.

[11] Julie Hilden, The First Amendment Issues Raised by the Troubling Prosecution of e-Book Hacker Dmitry Sklyarov, a column in www.FindLaw.com , Friday, August 21, 2001, retrieved on November 17, 2008

[12] Stephen A. Merrill and William J. Raduchel; Committee on the Impact of Copyright Policy on

Innovation in the Digital Era; National Academies Press Washington DC, 2010. At page 2.

[13] Directive 2001/29/EC.

[14] http://fcforum.net/

[15] http://www.copyright4creativity.eu. See also the European Copyright Code proposed at http://www.copyrightcode.eu

[16] [2001] OJ L 167/10.

[17] c.48 (Eng.).

[18] 2010 C. 24. This Act arose as a result of the recommendations of the Gowers Commission on the Review of Intellectual Property in the Internet Age.

[19] Andrea DaSilva. 2015 Top Markets Report Media and Entertainment. A market Assessment Tool for U.S Exporters, U.S Department of Commerce, International Trade Administration, Industry and Analysis (I&A). July 2015.

[20] See samvak.tripod.com/busiweb37.html Accessed 20^th September, 2016.

[21] This Act has undergone various amendments in 1983, 1984, 1993, 1994 and 1999 to meet with the national and international requirements and catch-up with modern practices.

[22] More information can be found in: Xue “Snow” Dong and Krishna Jayakar: The Baidu Music Settlement: A Turning Point for Copyright Reform in China?, Journal of Information Policy, Vol. 3 (2013), Published by Penn State University Press from pages 77-103 URL: http://www.jstor.org/stable/10.5325/jinfopoli.3.2013.0077 Accessed: 09-06-2016 06:58 UTC.

[23] 545 U.S. 913 (2005).