Intellectual Property Perspectives: Digital copyright protection dilemma (Part II)

Recontextualising concepts

As we pointed out last week, the emergence of digital multimedia products since the early 1990s has caused unresolved philosophical and legislative challenges to traditional copyright protection concepts and norms. This has glaringly exposed the dangers posed when legislation perennially lags behind technological developments, in many cases making it obsolescent. As a result thereof, this called for recontexualization to address the new phenomenon in terms of concepts such as authorship, works, exclusive rights, duration of rights, infringement, enforcement, exceptions and limitations.
Concept of author

Barring inconsequential differences in syntactical expressions, global legislations proceed on the general premise that authorship is a human imperative, ie, it can only be done by a human being. The applicability of such a postulation in the digital context raises the dilemma, for, in the digital context, we have situations in which authorship can clearly be attributed to human contribution, and borderline cases where this is difficult to ascertain.

Two key instances arise, namely; computer-generated products wherein the human being simply inserts the mere outline of a creative concept and the computer transforms this into  completely different products from the initial one, and secondly, technological productions such as the reading of physical data by sophisticated machines embeded in satellites and spacecraft. Such a scenario certainly throws the notion of authorship into a quandary.

Concept of work

In the traditional context, a work may be defined as the ordered expression of thought. Thus meaning the components of a work are hinged on the criteria of “order,” “expression” and “thought.” The dilemma herewith is as follows:

Order: Whereas in the traditional context of literary, musical, dramatic and artistic works the criterion of order is generally satisfied by compliance with the conventional rules of grammar, syntax, musical composition and arrangement of colour, with digital works this is very difficult owing to their fluidity.

Expression: The  criterion of expression is satisfied when the work appears in perceptible form such as printed works, musical scores, paintings, drawings, dancing motions etc. In the digital context the dilemma lies in determing how long the expression must endure; whether the expression must bear meaning, and whether the expression must be perceptible.

Thought: This refers to how the human mind imagines, conceives and arranges the contents of its memory. Should this be the case then as regards the digital context? The question would thus be on whether computers are eventually capable of emulating the human thought process?

Concept of creation

This refers to the creative aspects of the work. These are features of the work that reveal uniqueness of the applied human ingenuity and endeavour in bringing something into exsistence that did not exist before. In this sense there clearly must be demonstrable evidence of marked individuality. It is this creativity of the human intellect that gives rise to intellectual property (IP) as personality rights. This again raises difficulties of ascertaining creativity of the human endeavour in the mysterious world of the digital environment.

Concept of joint authorship

This occurs when there is corroborative effort applied in creating a work by two or more authors. In which case there must exist contemporaneous intention and knowledge to work together, of each other’s contribution and that the respective contributions would be merged into one composite work. The authors need not actually meet and work together. Again, this poses conceptual difficulties given the ease of access, manipulation and interactivity of digital works with online users.

Classification of works

Whereas traditional copyright works are by their very nature fixed and thus easy to categorise as literary, artistic, dramatic, musical, cinematographic, this is pretty problematic with digital works owing to their fluid, hybrid, transient, interactive and easy to manipulate nature. By virtue thereof  digital works adorn characteristics and elements of various categories of works outlined above.

Exclusive rights

To restate, copyright is generally perceived as a “bundle” of rights comprising the right to; reproduce the work in copies, prepare or authorise the preparation of derivative works, distribute or  control the distribution of the works to end-users and perform the work in public. Of course, the exercise of these rights is subject to permissible exceptions and limitations whose purpose is to promote public good through the advancement of culture, science and technology.

The same rights, mutatis mutandis ie, the necessary changes having been made, avail to digital works irrespective of whether they were originally created in hard copy or digital format, or in whole or in part.

Reproduction right

Copies of digital works are reproduced not only when the online user accesses, downloads and stores the initial works in a hard or floppy disk or memory stick, but also when the work is temporarily received and stored in one’s computer memory. Thus, even mere access to digital works has implications on the reproduction right, whether or not the user makes permanent or temporary copies thereof. The conceptual dilemma arises when determining the substantiality or de minimis of copying, especially when it concerns mere accessing. This is crucial given that this is usually done by individuals for their private use as opposed to commercial exploitation of the work. 

Distribution rights

Given the nature of multimedia works and the global interlinkage through computers, this has  implications on the public performance and distribution rights by transmission as all those that access the works on the network would have received copies of the work in their computers. However, unlike the distribution of hard copies, digital works are not immune from manipulation, adaptation, or altogether distortion when recipients seek to make copies. 

Public performance

Whether online users forward  initial works to selected recipients or merely post the work onto the network without necessarily transmitting it to the general public, this still has implications not only on the reproduction and distribution rights, but also on the public performance and display rights. For, once the work is posted, all those with access to the network would be able to receive the performance or display notwithstanding that the work is received upon calling it up, at separate times or different places.

Digitalised rights enforcement

Traditionally, copyright owners have always been averse to directly dealing with the ultimate consumer, preferring instead to entrusting such responsibility to intermediaries such as publishers and producers as in the case of motion pictures and phonograms. In the digital environment, online services or circumventing devices have emerged and supplanted the traditional intermediaries as new functionaries for purposes of management of their digital works.

Multimedia onslaught bewilderment

However, despite concerted debate and efforts to sanitize the digital copyright operating environment to date, no amount of legislative innovative initiatives or technological countervailing measures has managed to provide permanent solutions to curbing digital piracy as these have  been constantly matched or altogether outpaced by equally sophisticated hacking or circumventing technologies, much to the chargrin of copyright and related rights owners,investors, policy makers and legislative formulaters alike.

 

Pasipanodya is an IP consultant who writes in his own capacity. Feedback on:mobile +263775053007, or e-mail-henripasi@gmail.com

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